25 January 2011

Sheridan: "time just lands in prison & there it is held fast..."

"Was this the face that sunk oor Tommy's ship
And burnt the topless tan of Sheridan?"

Stripped of the superstitions surrounding its form, at its most basic, pronouncing sentence must be a surreal experience.  Ums and aws can't be tolerated. The judge simply has to make up his mind. For the convict stood mutely in the dock, every exculpating and excusing word having been said, there is only paralysis, anticipation and the final deadening weight as your sentence is uttered. I wonder if either party gives thought to the diffuse choices which brought the pair of them to this particular pass. The jury may blame the prosecutor for making it decide, the judge can blame the jury for their verdict, the executioner blames the judge for handing down a sentence of death, and secondarily, perhaps, the axe he employs to put a grisly end to proceedings. Each, in their own way, can say with some justification "it wisnae me"

Happily, we no longer live in times where judicial decisions have such fatal consequences, but many weighty burdens of conscience still fall on the contemporary sentencing judge. Particularly so when that judge must decide what to do with an offender who poses no risk to public safety but who has been convicted of a crime of fraudulently manipulating courts for financial gain, thereby, at least at the level of theory, laying an axe at the roots of public justice.  One year, two years, three years, four? Five? Each takes only a faint judicial breath to form and the immediate enormity of the time suddenly stretches out before the convict. His lead away. As Ewan MacColl wrote, in his Lag's Song...

When I was a young lad sometimes I'd wonder
What happened to time when it passed,
Then one day I found out that time just lands in prison,
And there it is held fast.

Perjury is a common law offence, whose maximum sentence is one of life imprisonment. It is difficult to envisage what circumstances, if any, might attract such a maximum.  The 1983 case of Gerald Hagan v. H.M. Advocate may be relevant in terms of coming to some computation. Seventeen year old Hagan gave perjured evidence in a rape case, in which he was a material witness. Lord Hunter had imposed a four year sentence on the youth, which was reduced to three years by the Court of Criminal Appeal in "reluctant" consideration of his youth and a background of threats and intimidation which he had been subjected to before bearing his false witness. Lord Justice-General Emslie's general remarks are of particular significance here. He said:

"The trial judge proceeded to sentence. He very properly took the view that the consideration of general deterrence in the public interest was of importance in dealing with the crime of perjury. It is a crime, as has been said before, which strikes at the very roots of the rule of law and the administration of justice."

Who knows what view Lord Bracadale will take tomorrow at Tommy Sheridan's sentencing hearing. That said, it probably isn't splendidly strategic to pre-empt the decision of the man who will pass sentence on your friend and ally with the language of "vindictiveness". There has been some suggestion that if you are sentenced to serve a jail term of more than a year, you are forever thereafter disqualified from holding parliamentary office. Electoral law isn't my thing, but I delved into it and can find no basis in law for this claim. Indeed, it seems most obviously to be a misreading of section two of the Representation of the People Act 1981, which reads, emphasis mine...

"A person found guilty of one or more offences (whether before or after the passing of this Act and whether in the United Kingdom or elsewhere), and sentenced or ordered to be imprisoned or detained indefinitely or for more than one year, shall be disqualified for membership of the House of Commons while detained anywhere in the British Islands or the Republic of Ireland in pursuance of the sentence or order or while unlawfully at large at a time when he would otherwise be so detained."

Reading the sections of the Scotland Act 1998 which deal with disqualifications from standing for Holyrood (sections 15 - 18) I can find nothing even remotely touching on a conviction for more than a year eternally consigning you to the category of unelectable. At least formally speaking. If any of my readers have a more marshalled command of electoral law and can direct me to some legal source that I've neglected on point, it would be appreciated*. That said, if generally reported predictions are correct, this will be little comfort to Mr Sheridan, who may have five years in which to echo the last refrain of MacColl's song...

Got time on my hands I've got time on my shoulders
Plenty of time on my mind.
There's no summer or winter when once you land inside here,
Just that old prison grind.


*I've consulted a soul much more learned that myself in matters legal and electoral. He has confirmed that the foregoing is an accurate interpretation of the Representation of the People Act of 1981. As a result, contrary to the view being expressed in some quarters, there seems to be no legal impediment that would prevent Tommy Sheridan from returning to parliament after he has served his time in prison (although bankruptcy may still do so, but is likely to be discharged if he is engulfed by it in the near future and his sentence is sufficiently long). Similarly, while other incapacities are set out in section 173 of the Representation of the People Act of 1983, these don't seem applicable to a conviction for perjury, concerned as they are with statutory offences of corrupt and illegal practices, as defined in the Act.


  1. or even blame another jury?

    the jury at the libel proof in 2006 decided on Sheridans financial gain and could have decided on anything from zero to 200k. As you describe his crime of fraudently seeking financial gain, had the jury awarded in Sheridans favour in 2006, but with zero or token compensation, would this make a difference to the sentence? He himself had no control over the amount 'gained'.

    Its interesting to note that Sheridan sued for 120k over a story largely acknowledged to be untrue. In fact the subject of that story Ms McGuire, was herself cautioned for perjury, but no proceedings took place because of her health condition.

  2. Anonymous,

    You are correct in the sense that the precise amount awarded by the jury was outside of Tommy Sheridan's control.

    The Court of Session Act 1988, which regulates civil juries in this respect, reads (at s17(4)):

    "Where the jury in an action which concludes for damages finds a verdict for the pursuer they shall also assess the amount of the damages."

    However, if my recollection serves me well, he actively sought damages running to a six figure sum, I believe the full £2oo,ooo that the civil jury awarded. I'd have to check contemporaneous reports to be absolutely precise. As a consequence, he cannot convincingly say, as the Marquis de Valmont said "it's beyond my control".

  3. Hi Lallands,

    As far as I can remember, it used to be the case that actual incarceration was not a bar to becoming an MP to the UK parliament. Indeed, Sinn Fein or IRA candidates were elected under just such conditions in, I think, the 1970's. The most notable of which was probably Bobby Sands, who died in prison during his hunger strike while still an MP.

    The legislation, barring prisoners serving terms in excess of a year standing as candidates for the UK parliament was introduced by Margaret Thatcher in response to these actions which gave tremendously positive international publicity to the IRA and their cause.

    This legislation also applied to prisons outwith the UK, thus debarring those emprisoned in the Republic of Ireland and elsewhere from standing for the UK parliament.



  4. Rab,

    I don't have the legislative history to hand or in mind. However, the section I mentioned was enacted in 1981.