A numpty's guide to appealling Tommy Sheridan's conviction...

Mater Peat Worrier is thoroughly sick of Tommy Sheridan. For her, the Satsuma Socialist is guilty as sin, indictment proved, conviction well earned and eminently deserved. The reappearance of Sheridan's brazen phizog on the telly over the hacking scandal, and Andy Coulson's arrest in particular, prompted groans and rolled eyes. Without a leg to stand on he might be, but "the Black Knight always triumphs!" 

For those who feel similarly, I apologise for what follows. However, with all of the rumour and conjecture surrounding the case, I thought it would be helpful to compose a clear exposition of just how the High Court of Justiciary deal with appeals against conviction, raised on the basis of new evidence becoming available after the jury's final say.  A certain degree of circumspection is indicated here. We know that the Crown Office has instructed Strathclyde Police to investigate telephone hacking in Scotland, with an especial focus on "allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan".  That investigation may raise criminal prosecutions I have no intention of prejudicing.

Using the resource of the contemporaneous Sheridan Trial blog, Scots Law Thoughts has applied his forensic mind to the available testimony of some of these witnesses - specifically those News of the World figures, including Andy Coulson - exploring potential grounds on which perjury charges might be brought against them, and the difficulties which might assail proving such charges in court. 

Informed by the driving interests of the London media, much of the discussion has focussed on the figure of Andy Coulson. In various quarters, it has been suggested that if the Prime Minister's former communications director did commit perjury in H.M. Advocate v. Sheridan, Tommy's conviction is surely rendered questionable, undermined, unsafe. Less discussed, there is also the issue of missing emails which were not produced at the time of Sheridan's trial, but which have now been recovered. We do not know what these communications may contain. Speaking to the BBC, Labour MP Tom Watson argued...

“The jury was not in full possession of the facts. I think Tommy Sheridan was wronged. Had they been in possession of the email it might have materially affected the outcome of the trial.”

A few weeks back, I composed a brief post with very limited aims, entitled "Sheridan wasn't convicted on the evidence of Andy Coulson". My intention was to make two basic points. Firstly, Coulson was a witness called by the defence and his evidence did not constitute any part of the Crown case. He was not, as some people were suggesting, an essential witness against Sheridan, though he was certainly a hostile figure called at Tommy's own instance, with little prospect of adding exculpatory evidence to the charges he faced. Re-examining the final indictment, I suggested, also serves to put Coulson's comments from the witness box in some sort of perspective.

In that piece, I was careful not to be too sweeping, nor to argue blankly that whether or not Coulson perjured himself in the Sheridan trial is of no consequence for any appeal against Sheridan's conviction. Although I unaccountably missed it at the time, and it was not widely publicised, in early June, Lord Wheatley refused Sheridan's first attempt at an appeal against conviction and sentence in the first "sift", a finding his legal representatives are presently inviting further judges of the High Court to review.  It remains to be seen if these judges will see arguability where Wheatley saw none. However, on the BBC's Politics Show Scotland, Scots criminal advocate Paul McBride QC, dispensed with such circumspection, confidently arguing that...

"Tommy Sheridan was convicted of perjury by telling a civil jury that he hadn't been to a swingers club and that he hadn't told members of his own party about it.  The evidence at the trial was from members of his own party that he had been to a swingers club and the jury accepted that evidence and he was convicted of perjury.  The News of the World had no input whatsoever in relation to that perjury conviction, so the evidence of any journalist of the News of the World, even if it was perjured evidence, would not affect the conviction of Tommy Sheridan at all."

So is Mr McBride correct? Is it as clear-cut as all that? Alternatively, is there any basis to conclude that the speculators crying that Coulson's arrest (remember, he hasn't been charged with anything, and may not be subject to any criminal proceedings) must cause the High Court of Justiciary to turn the key in the lock, and throw open Sheridan's cell door? What to make of Tom Watson's suggestion that the failure to produce these emails - whose contents, remember, we cannot assess - of itself constitutes a miscarriage of justice? How can we expect the Court of Criminal Appeal to approach these issues? Our starting point for criminal appeals is part VIII of the Criminal Procedure (Scotland) Act 1995.  The Act provides that the High Court can review convictions on the basis that they are a miscarriage of justice.

"... which may include such a miscarriage based on— (a)subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings ..." [s106(3)(a)].

As this suggests, the 1995 Act imposes some limits on the new evidence which can found an appeal. The evidence must not have been heard at the original proceedings and there must be a "reasonable explanation" for why new evidence was not heard at the time [s106(3A)]. Where the evidence is from a person who gave evidence at the original proceedings, and differs from or is additional to the evidence adduced there, it may not furnish a basis for an appeal unless "there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence" [s106(3C)(b)]. 

"Independent evidence" includes evidence not lead at the original proceedings; from a source independent of the person producing the new, unheard evidence; which the court accepts as both reliable and credible [s106(3D)].  On any reading, however, the statute is silent on the how an appeal based on new evidence is to be determined. Outstanding, therefore, is the question: what constitutes a miscarriage of justice? To answer this question, we have to turn from statute to the criminal jurisprudence of the High Court. Our starting point is the dicta of Lord Justice-General Emslie in Cameron v. H.M. Advocate.  Emslie held that:

"... if the court is to find that a miscarriage of justice had occurred in an appeal such as this, it must be satisfied that the additional evidence is at least capable of being described as important and reliable evidence which would have been bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jury's determination of a critical issue at the trial. If the court is so satisfied, it will be open to it to hold that a conviction returned in ignorance of the existence of that evidence represents a miscarriage of justice...

Drawing on this approach to new evidence appeals, in Al-Megrahi v. H.M. Advocate, Lord Justice-General Cullen helpfully summarised Justiciary's approach thus.

(1) The court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice.

(2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit.

(3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred.

(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.

(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial.

The first thing to observe about this approach to criminal appeals is its flexibility and lack of formalism.  In the recently UK Supreme Court case of Nat Fraser v. HM Advocate, Lord Hope described this approach as a "quite stringent".  For example, any new evidence discovered may be credible and reliable, but may not have a material bearing on a "critical issue" at the trial. Alternatively, evidence may speak to a critical issue, but may not come from a credible or reliable source, thus nobbling any appeal against conviction predicated on it.  Any Sheridan appeal founded on new evidence, whether emails or the allegedly perjured testimony of Andy Coulson on his knowledge of unlawful practices at the News of the World, fits into the legal framework of Cameron and subsequent cases.

To my eye, the vital (and challenging) question for Sheridan and his representatives to answer is how evidence of Coulson's perjury, or new emails featuring the Satsuma Cicero have a material bearing on critical issues at his trial? In coming to a view of what is critical, look back at the final indictment. In what respect is the general hacking practices of the News of the World, and their editor's knowledge of the same, critical for the determination of whether Tommy went to swingers club in Manchester, told his SSP colleagues about it, and subsequently lied in court about both attending Cupids and telling others about it? Of the emails, it is impossible at this stage to take a firm view. Obviously, if this body of communications contains correspondence asking "how is the concocted footage of Sheridan's confession coming?" - that could be said materially to relate a critical issue at the trial - the veracity of the "McNeilage tape", which was played through to the jury on a number of occasions.

However, we can be absolutely clear that Tom Watson MP is quite wrong in law to suggest that the absence of these emails by itself makes the case's outcome fundamentally questionable. Watson may hold that view, but the High Court of Justiciary certainly won't sympathise. Essential if these documents are to secure the upturning of the jury's verdict is that their contents are "likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial" and thus they are "not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice". The same goes for any untruths in Coulson's evidence in the High Court.

In the absence of emails drafted in the hypothetical, fundamentally incriminating terms I describe, I struggle to see that the High Court will be moved to overturn the jury's decision.  Similarly, if Coulson's alleged perjury is limited to the general unlawful practices of employees at the News of the World, and his knowledge of them, how does that impact on the critical issues of the Sheridan trial, concerning swingers clubs, his confessions to his colleagues and his lies about both in Court?

These are the questions which Sheridan's representatives will have to work up persuasive answers to, if their client is to see his conviction quashed on grounds of new evidence. As the Lord Justice General noted, setting aside the verdict of a jury is no light matter. And on these tests, convincing the High Court to overturn Sheridan's conviction may be a very tall order indeed, despite alleged perjury, despite absent emails, whatever Tom Watson believes.