The Auld, Auld Triangle
~ Brendan Behan(ish)
~ Brendan Behan(ish)
In the women's prison
There are seventy women
And I wish it was with them
That I did dwell
Then my pubic triangle could go jingle-jangle
All along the banks of their birthing canals.
After he had been beheaded on her husband's order, Fulvia, wife of Mark Anthony, apparently tugged the lolling tongue from Cicero's mouth and pricked the flaccid, silenced organ with a hairpin. No such hideous muting ritual for Tommy Sheridan, but yesterday's guilty verdict on five of six perjury clauses has left this Satsuma Cicero comprehensively peeled, pith, peel - and pulped. For myself, I don't give a fig about swinging. Indeed, the very thought of any penetrative vivacity involving Ms Khan - wherever, whenever, with whomever - puts a tackety boot of lurching sickliness into my gut. And the process?
Law's great brutality, and in many respects, its great achievement, is its artificial finality. Judge and jury cannot shrug. They can fail to be convinced, but they cannot avoid making a decision. Judgements long deferred becomes a judgment finalised. Uncertainties collapse. Real world cares, their hearsay and uncorroborated truths - all poised equivocations are obliterated by the unavoidable side-taking of a verdict. Nobody paying attention could miss the sudden shift in mood and tone yesterday, from contempt-of-court fearing balance to wholesale condemnation. As I argued before the jury delivered their majority verdict yesterday, its important to recognise the gap between truth and criminal law's instruments - narrow charges, limited facts, much of the story left unsaid, significant evidence left out, whether tactically or due to the law of evidence. Trials do not tell the whole story. As the Advocate-Depute Alex Prentice QC said to the jury in his summing up, dismissing much of the defence case as "irrelevant", "this is not a public inquiry, it is a criminal trial". Despite my consciousness-warping legal education, I'm not arguing that Sherry shouldn't have made this stoutly "irrelevant" alternative case, articulating his arguments according to his own political lights. Subverting the polite norms of the system, discordantly refusing to submit to the ruling spirit of your subjection, is calculated to appeal to me. However, in the final analysis, Sheridan's attempts to redefine the terms of his trial failed - and failed much more profoundly than (I think almost everyone) anticipated.
Much has been made of the suggestion that Sheridan was somehow unfairly singled out. Why a prosecution in this case and not in others? Why do other civil actions not give rise to parallel Crown curiosity, investigation? On the second point, it is worth bearing in mind that few civil matters involve such clear oath-bound divergences in the evidence lead. University of Edinburgh criminal law scholar, James Chalmers, appealed to metaphors of the armoury, distinguishing perjury as a shield from perjury as a sword. If we assume that yesterday's verdict is just - then we have a particularly extreme case, where the whole action was predicated on a fraud on the court. 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? If I embezzled £200,000 from my employers, I think few of us would think such a fraud was minor. You might argue that Sheridan's primary purpose was not venal cash-grabbing but was bound up with the bubble reputation and the scabrous nature of the publication he opposed. That I could believe, at least somewhat. However, such overdetermined crimes of dishonesty are hardly without precedent. Think of those cases of fraud where the cheat accumulates vast vaults of cash in their attics or cellars - ill-gotten gains unspent - whose dishonesty is driven by the thrill of cheating their employers or some sort of triumphant ressentiment, rather than explicit avarice. Are we arguing that one should only be investigated and indicted if you commit your crime like a good wealth-maximising monadic individual and spent your gains on a louche bourgeois lifestyle? Are we suggesting that false accounting should be prosecuted, but those who make dishonest use of our formal justice systems for gain hardly trouble the conscience? Equally, if we follow the reasoning through and demand all perjurers should be prosecuted - that hardly exculpates the Satsuma Socialist of his perjuries, does it? Those entertaining doubts about the justness of putting these accusations before a jury to determine have other questions they might ask themselves. If you believe Tommy Sheridan lied in court, thereby accessing its institutional power and deploying that power against a dislikeable opponent in News International, are you arguing that the Crown should ask itself were the lies told in a case involving a moral or immoral opponent before pressing charges? I'd be interested to hear that argument justified, if we generalise its significance beyond the eminence grise of Rupert Murdoch. For my part, I find all of these arguments deeply unconvincing. Then again, I would say that - having imbibed a good deal of bourgeois legal ideology.
Still others have invoked the spectres of other guilty men, who do not feel the wroth and rack and ruin for their substantial misdeeds in life, while Sheridan careens into oblivion. Proportionate, fair? Perhaps not, but again, this is hardly an active exculpation of Tommy's wilful misdeeds, is it? To be quite clear, I think proportion matters and we should be icily clear with ourselves about the vital importance of not collapsing our values into legal values by identifying legal guilt with guilt, blameworthiness and immorality per se. There are plenty of smooth besuited villains who are convicted of nothing and yet who warrant glacial contempt, who live within the law and yet live profoundly immoral, contemptible existences. In all of this, we should bear in mind the limits of the law's stark verdicts and the gap which separates it and ought to separate it from reflective, reflexive grey-shade tribunal of our own consciences.
On both registers, it seems to me that Mr Sheridan was guilty as sin and reaps a ruinous harvest for it. This is sorely to be lamented. The civil appeal in the Court of Session was sisted pending the outcome of yesterday's criminal case against Sheridan. He hasn't seen a penny of the £200,000 he was awarded at the end of the 2006 defamation trial. I would not wish to pre-judge their Lordships' analysis, but it is an old legal maxim that no soul should be permitted to benefit from his own wrongs. To the obvious personal wreck and the political collapse - in the New Year we will likely add financial ruin. I also understand that Mr Sheridan had been reading for a law degree. I've no idea if he completed that endeavour - however, resurrection as any sort of legal professional is now also impossible. The Satsuma Cicero's last case. This whole affair is an unnecessary gruesome catastrophe that squandered the possibilities of a better history. I'm reminded of a quotation from Voltaire, which seems apt here:
“I have never been ruined but twice: once when I lost a lawsuit, and once when I won one.”