10 August 2011

#Hackgate & the Crown Office...

In a timely development last week, neatly following my post of the standards the Court of Appeal applies to appeals against conviction based on new evidence being adduced, Tommy Sheridan's appeal against conviction and sentence was rejected at the second "sift" by the Court. As was widely reported, the Crown Office have announced that, under their direction, Strathclyde Police have launched an "investigation into alleged telephone hacking in Scotland". They informed us that...

The Crown had previously asked Strathclyde Police to make a preliminary assessment of the available information and the evidence given by certain witnesses in the trial of Tommy Sheridan following allegations made against the News of the World newspaper. The preliminary assessment has concluded. Strathclyde Police have now reviewed the available information and following liaison with the Area Procurator Fiscal at Glasgow the Crown has instructed an investigation should commence. The investigation will be progressed expeditiously and in close liaison with the Area Procurator Fiscal and Crown Counsel. Significant resources will be deployed though these will vary with the needs of the investigation.  The investigation will cover the following:

1. Allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan.

2. Allegations that, in respect of persons resident in Scotland, there are breaches of data protection legislation or other offences in relation to unlawful access to personal data.

3. Alleged offences determined from material held by the Metropolitan Police in respect of 'phone hacking' (Contraventions of the Regulation of Investigatory Powers Act 2000) and breaches of data protection legislation in Scotland.

4. Alleged instances of police corruption linked to items 2 and 3 above, in respect of the unlawful provision of information or other personal data to journalists or persons acting on their behalf.

Having investigated these matters Strathclyde Police will report to the Area Procurator Fiscal at Glasgow and Crown Counsel.

Politically, interest has primarily been piqued by the first of these fourfold points of investigation. In context, it clearly speaks to those witnesses in H.M. Advocate v. Sheridan who were asked about the issue of phone hacking, which includes David Cameron's former communications director, Andy Coulson. Perjury is popularly conceived as simply giving false evidence under oath, whatever the nature of that evidence, however trivial or peripheral to the case being examined.  Curiously, in Scots Law, perjury is more narrowly defined than that. So "what is perjury, and what isn't?". Scots Law Thoughts has composed a mammoth post on the subject, reviewing the legal authorities, their definition of the offence of perjury, and their applicability to the News of the World Sheridan trial witnesses. Paul writes...

"If a person, having sworn the oath or having affirmed, wilfully makes a false statement in evidence, such evidence being competent in the case in which given and relevant to proof of the charge or credibility of the witness, then perjury is committed under the Law of Scotland."

The potentially interesting and problematic question is whether Coulson's answers about phone-hacking at the Sheridan trial, even if wilfully falsely given, can be said to be relevant to the proof of the charge, or the credibility of witnesses? To put this as starkly as possible, if Coulson's evidence was not held to be relevant by the Court, in law, even if the testimony was false, he has not committed perjury.  Most would, I fancy, find this to be a pretty shocking conclusion and ill fit with the idea that one should tell our courts the truth, under fear of severe penalty. I profoundly sympathise with that view.  

Despite the individual interest of the investigation of potential perjuries these Sheridan trial witnesses, in many respects, the rest of the Crown Office press notice is arguably more important. As I have observed before, we really have no idea about the extent to which the media in Scotland may have used or solicited others to use unlawful means to secure private data, nor for that matter to what, if any, extent Scottish police officers may have corruptly facilitated this seeking after personal information.  I have already noted that the Information Commissioner's second report - What Price Privacy Now? - which enumerates the discoveries of Operation Motorman, does not break down its findings by jurisdiction, leaving Scotland's position unclear. What is clear, however, is that the Scottish press is not inoculated against the sharp practices which, once revealed, vilified and destroyed the News of the World. Of the Scottish title, the Daily Record, the Information Commissioner recorded seven confirmed instances of transactions to unlawfully secure private data, with two journalists implicated.  Points (2) and (4) of the Strathclyde Police investigation are clearly exceedingly broad - you might think implausibly so - apparently examining all potential breaches of data protection with respect to Scottish residents, and extending to pan-Scotland police corruption and press mischief in that context. 

While I can absolutely see a role in the police in an investigation of criminality, I'm not wholly convinced that, given this investigation's very diffuse goals, and the public interest in finding out any conclusions reached, that criminal justice processes can adequately serve all of these goals. For example, where no charges are brought against individuals in court, we tend to learn very little about evidence uncovered by the police in the course of their enquiries. Take the Information Commissioner's report. Needless to say, he identifies a far, far greater number of unlawful transactions than have ever been prosecuted.  Cases might not proceed in court for a number of reasons - criminal standard of proof, limited evidence, exclusionary evidential rules, prosecutors determining proceeding is not in the public interest - this does not mean that offences were not committed.  In this, as in other areas, taking non-prosecution and non-conviction for evidence that offences have not been committed is exceedingly problematic. While Lord Justice Leveson's inquiry does extend to Scotland, given its already bloated terms of reference, I would be wildly surprised if they took a significant interest in events transpiring north of the Tweed. We know that the Scottish Government commented on the inquiry's draft terms of reference, and wanted Her Majesty's Government to include the findings of Operation Motorman in Leveson's remit. Pete Wishart said...

“The hacking activities by News of the World were reprehensible, but we cannot assume they were confined to just one newspaper or form of media. It is disappointing therefore that the Prime Minister has rejected the Scottish Government’s call to include an investigation into the findings of the Information Commissioners 2006 report on Operation Motorman within its terms of reference.”

Pete need not be too disappointed. The Inquiries Act 2005, under which the Leveson investigation was constituted, affords Scottish Ministers the power to order inquiries into matters that relates to Scotland and are not a reserved matters [s28 2005 Act]. Scottish ministers must at least be dimly familiar with this piece of legislation, since UK Ministers are obliged to consult them, if any inquiry concerns a "matter that relates to Scotland and is not a reserved matter within the meaning of the Scotland Act 1998". While there may be some legal hurdles to be overcome, it seems to me to be well within the powers of Scottish Ministers to hold their own inquiry on these matters concerning Scotland, if they believe such an investigation would be needful and beneficial, even dictating their own terms of reference. If minded to do so, disappointment could give way to action.  Otherwise, Strathclyde's police investigation continues. While we can expect the press to take a great deal of interest in the fates of Bob Bird and Andy Coulson one way or the other - those like me, curious about the currently totally opaque implications of "Hackgate" in Scotland, should be sure to attend to any developments, under points two and four of the Crown Office investigation.


  1. As always an excellent and thought provoking piece. Thank you also for the mention.

    I am glad to see that I was succesful in editing my post down to "mammoth" size!

    The more I think about this issue, the more I think there is significant value to making the Leveson Inquiry into a sort of "Truth and Reconciliation Commission".

    If we have to await the outcome of various criminal proceedings, including appeals, it would not be a surprise to still be waiting for the final report in 2015!

    Unpalatbale as it may seem, is there a case for am amnesty or granting the relevant parties immunity from prosecution?

    Let's get the truth out there. If people, whether journalists, proprietors, editors or investigators have broken the law, let's have them permitted to confess this without fear of gaol.

    As with the News of the World, the public can wreak their revenge!

    Otherwise, by the time the final report comes out, the issue will, frankly, be academic.

    If people are understandably upset by the technicalities of perjury, then they would be even more perturbed by an amnesty. But if the issue is one of cleaning the Augean Stables of (the former) Fleet Street, or trying to punsih the miscreants, then there is a wider public good in the former.

    The position as regards civil damages actions is obvioulsy different. Maybe an amnesty couple with an FAI like provision that evidence in the Inquiry can't be referred to in other court proceedings?

  2. The Guardian is reporting today on embarrassing new allegations of dishonesty and cover-up against the News of the World. A letter from Clive Goodman to the News of the World claims that phone hacking was "widely discussed" at editorial meetings at the paper until Coulson himself banned further references to it, and that Coulson offered to let him keep his job if he agreed not to implicate the paper in hacking when he came to court.

    Select committee member, Tom Watson MP, said Goodman's letter was "absolutely devastating" and the "letter is the most significant piece of evidence that has been revealed so far. It completely removes News International's defence. This is one of the largest cover-ups I have seen in my lifetime."

    This further substantiates Tommy Sheridan calling Andy Coulson as a witness during his perjury trial and the socialist’s claims of collusion, corruption and conspiracy. Suggesting to Coulson that his evidence "stinks of corruption" was surely a competent question, especially for a defendant running a defence that the police’s overwhelming effort to jail him and his wife, whilst overlooking the crimes of others and the paper, was motivated by collusion and conspiracy.

    Similarly asking Coulson if he had any knowledge of phone-hacking and more specifically any knowledge of Sheridan’s phone being hacked was also competent. I could go on at length about all the other relevant questions Sheridan asked Coulson but I’ll throw in just one more point for now. If Coulson personally offered Goodman inducements to affect a cover-up, Sheridan’s questions to Coulson about who was paid by the News of the World to say what appear absolutely competent.

    If Sheridan was right about Coulson, was he also right about Bob Bird, Douglas Wight and the "missing" NotW emails? Armed with the full knowledge of the NotW’s criminal activities, should the jury have been giving much more weight to Sheridan’s claims of payments or inducements offered to Katrine Trolle to encourage her to tell lies against him? Again I could go on. For a defendant running a defence of collusion, corruption and conspiracy, Coulson’s testimony and, importantly, the credibility of Coulson as a witness is both competent and relevant.

    The jury was given the distinct impression that Coulson, Bird and Wight were credible, however recent allegations against them and their newspaper suggest otherwise. The resignation of two senior Met officers also shows that Sheridan was right to question the relationship between the NotW and police. When Sheridan put it to Coulson that the police and prosecutors in Scotland were doing the NotW’s work for them, I wonder what Coulson’s honest reply should have been? Perhaps "Yes, Mr Sheridan, we’re delighted that the police have taken up our suggestion to spend millions of pounds of taxpayer’s money pursuing you and your wife for perjury. It’s saving us a fortune and we couldn’t be happier that our crimes and cover-ups are being overlooked, e.g. the police haven’t even bothered to investigate the emails we claim are missing."


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