3 June 2015

On perjury...

Perjury in Scots law is not lying under oath. Or not only lying under oath. I suspect many folk will be goggling at the news that Andy Coulson has been acquitted of giving perjured evidence in the case of Her Majesty's Advocate v Sheridan. The judge upheld a "no case to answer" submission by the defence on Monday. The news has been embargoed to allow the Crown to appeal against this decision. They declined to do so. Some supporters of Mr Sheridan took the opportunity to get their retaliation in first, under the veil of the Contempt of Court Act. Today, the jury was sent home without giving a verdict. Coulson is free.

Lord Burns held that Coulson's evidence was not relevant to the central issues in the Sheridan trial.  The judicial authorities have published the judge's explanation to the jury, and a longer note of reasons, explaining the decision. 

"After  two  days  of  legal  submissions  last  week  and  having  considered  the  matter,  I  decided  that  the  crown  had  not  led  sufficient   evidence   to   satisfy   me   that   the   allegedly   false  evidence was relevant to proof of the charge in Mr Sheridan’s  trial or to Mr Coulson’s credibility at that trial." 

As Lord Burns explains today, the lie must be relevant, going to the pith and substance of the earlier trial. And establishing that Coulson's dishonest testimony was relevant to the Sheridan case always looked a bit tricky. As far back as 2012, it was a point I made, and a point much more fully explored by the late Paul McConville on his Random Thoughts on Scots Law blog.  Folk now crying "conspiracy" should bear that in mind. This isn't corruption, it is the law. It isn't an expensive legal trick or a loophole. It is a point which any decent defence lawyer would make.

As this blog has consistently pointed out, against considerable misinformation encouraged by the ex MSP and his sympathisers, Tommy Sheridan was not convicted on the evidence of Mr Coulson.  The Crown did not rely on his testimony. Indeed, they disowned it. Coulson was a defence witness, with no knowledge of the key allegations made in the indictment against Mr Sheridan.

Go back to the charge sheet. Even if Coulson lied about his knowledge of phone hacking, how is this relevant to an indictment, alleging that you had attended a Mancunian knocking shop for a companionable evening, had a string of affairs, told your former party comrades about doing so, and lied under oath, in court, in dishonest pursuit of a significant sum of money, about your sojourning, your womenising and your confessions?

Had Mr Sheridan not sacked his lawyers, and conducted the case himself, Coulson would likely not have been called to give evidence. But he did give evidence. And on the evidence, Andy Coulson may well have lied under oath in the High Court about his knowledge of phone hacking in the News of the World. But mark this well: Coulson has not been acquitted of lying under oath today, but of perjury. As Lord Burns concluded today, "not every lie amounts to perjury." Not under the law of Scotland. A strange conclusion to a long case? An outcome which is liable to hold the common law crime of perjury up to public ridicule? Did the Crown screw up in failing to lead sufficient evidence about the relevance of Coulson's testimony?

Expect these questions to grip the media in the coming hours and days. 


  1. It seems to this layman to suggest that providing I run the relevant matters passed my legal adviser I may lie my head off in court, under oath. Which rather makes the oath somewhat pointless, does it not? 'I promise to tell some of the truth, but otherwise a pack of legal lies, so help me god' kind of thing.

    As such as a layman I might well be persuaded that therefore Scots Law on the matter is a bit of an ass and at risk of being in disrepute and needs to be tightened somewhat. Of course not too much, one person's lie is another's 'I didn't mention that for good reasons' and trials will last a lot longer and cost more if witnesses are compelled to tell everything they know that even might be germane. Having sat for week in jury being instructed by the crown about the vital importance of dry risers in a metals theft trial (they were making an example of the defendant) I desire this not at all in any future jury stints that I do. I know far more about dry risers than I ever wished to.

  2. Surely the jury should have decided if the lies were relevant to the Sheridan trial?

  3. Appears to this layperson as an incompetent action, fairly ruled upon by the judge.

    We can only hope that the action against Alistair Carmichael is more competently submitted and handled by the lawyers engaged by Orkney and Shetland constituents, but I think it will be pulled before his head of department, David Cameron, is ever called to court as a witness.
    Well done those lawyers who have given their service to this action pro bono.

    1. One can but hope. I see they were represented at the first hearing by Jonathan Mitchell QC -- a very experienced public law silk. I wonder if he will be sticking around for the main show.


  4. To thy new lover hie,
    Laugh o’er thy perjury;
    Then in thy bosom try
    What peace is there!

  5. Ta Andrew I understand the perjury / lie thing now.

    I dont think Sheridan has much in common with this chap, who irritated my Lord Braxfield -

    'To Margarot, a Baptist minister of Dundee—another of the political prisoners of that time—he said, "Hae ye ony coonsel, man?"—"No," replied Margarot. "Dae ye want tae hae ony appointed?" continued the Justice-Clerk. "No," replied the prisoner, "I only want an interpreter to make me understand what your lordship says."'

    1. Though Mr Margarot was an Englishman, so his lack of understanding could be forgiven! Little good it did him. Of to the Antipodes.

    2. As a naturalised New Zealander I feel bounden to point out that the Antipodes are an island group to the SE of NZ, population nil and that NZ was NEVER a penal colony. Australia is nowhere near antipodal to the UK.

      Norfolk Island is as close as the penal colony got to NZ, or the Antipodes.

  6. Sounds a bit of a stupid law. Given the SG's fondness for "bringing us into line with England", maybe this is the next one they could look at.

    Incidentally, couldn't the judge at least have pronounced on whether Coulson lied? In the statement you cite, he's still going on about "allegedly false evidence". Did they not even get so far as to examine the veracity of his testimony?

    1. As I think Lord Burns also said in that statement, deciding on whether or not the accused lied is not the judicial function in a jury case. Not his job to decide one way or the other.