…or ‘Scots Law Strikes Again’.
In Scotland, as I’ve said before, the burden of a court case is divided up. The Jury are the most important people in a court room, but they are the keepers of the facts. I’ve argued the sometimes that can lead to problems, but it remains that the jury determines the facts of the case. But the Judge is important too, because they are the keeper of ‘The Law’. It is their duty to ensure, not only that the law is observed, but to help the jury in determining the law. Before a jury is sent out to deliberate their verdict, the Judge explains the law to them, what is required to have been shown, and what should happen in certain circumstances.
In order to be found guilty of a crime, the jury has to find you guilty. In order for the jury to do that, the judge must be satisfied (as is their role) that the Prosecution has led evidence that could prove the crime. That is not to say that the judge feels that the crime has been proven on the basis of that evidence, but that if everything the prosecution has said is true, then the crime may have happened.
Take, for example, theft. The Prosecution would have to lead evidence that
- ‘A’ was in possession of something that was is not ‘A’s; and
- ‘A’ did not have the permission of the owner to have that item.
If the Prosecution can only lead evidence that shows that A had something in his possession that wasn’t his, then they’ve not shown that theft has occurred. Equally, if they can only lead evidence that shows that ‘A’ didn’t have the owner’s permission to have the item, they have not shown that theft has occurred either. Only if they can show (and just now, corroborate) that all parts of the crime have occurred through evidence, can the they be said to have done their job. It is then up for the jury to decide whether the evidence that has been presented to them is reliable enough to establish the guilt. If the Prosecution fails to do this, then it has failed in its job. The Accused person has no case to answer because the potential criminal activity cannot be established from what has been presented to the court. This is what we mean by the presumption of innocence – the Prosecution must attempt to show the accused person is guilty, there is no onus on the accused person to show they are innocent (though if they can that’s usually a good idea too).
Which brings us to today’s happenings in HMA v Coulson. Coulson was charged with perjury in the case of HMA v [Tommy] Sheridan & [Gail] Sheridan, which stemmed from Tommy Sheridan’s defamation action against the News of the World. It was alleged that Coulson perjured himself when he denied knowing anything about phone hacking while on the stand, when it later transpired he did (as was shown in the ‘Phone Hacking trials’ down in England).
Scots Law, as has been shown many times before, is a funny thing. While in England and Wales perjury is handily defined in the Perjury Act 1911, in Scotland it is still an offence defined at the common law, i.e. by the courts. And the development of the criminal Scots Law has led to a slightly different place than down south. IN common with everywhere else we have the requirements that a person:
- Is under oath (or affirmation); and
- Makes a statement they know is untrue, or does not believe to be true.
but, in addition, we have a (as far as I can find) unique requirement that:
- The evidence given was “relevant to the point at issue in the original trial, or relates to the credibility of a witness at the original trial” [SME – Criminal Law (Re-Issue); 18(1)(b) Para 477].
In the Coulson Case, each of these points can be be divided by their responsibilities. There’s no dispute that Coulson was under oath when his testimony was made – that’s not important here. The question over whether Coulson knew what he was saying was true or untrue is one of fact, and so for the jury to decide. The third component, however, is one for the law. And its this requirement that caused the judge to step in on Monday.
The Judge today said, in his explanation to the jury, said:
In 2010, Mr Sheridan had been on trial for perjuring himself when he gave evidence in the civil proceedings in his action for defamation against the News of the World. So the question of relevancy for me was whether the alleged false evidence given by Mr Coulson in that trial was relevant to the proof of Mr Sheridan’s perjury or relevant to Mr Coulson’s credibility as a witness in the perjury trial of Mr Sheridan. You will recall that Mr Coulson said in Mr Sheridan’s perjury trial that the person speaking on a video tape was Mr Sheridan. 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.
What this means is that the central matter in the Sheridan Trial was whether or not Sheridan attended a nightclub in Manchester (and to part in various related activities). Coulson (who was called by Sheridan in his defence – after he ditched his legal team that advised him not to) gave evidence that was not relevant to demonstrating that this occurred, and was even disavowed by the Prosecution in the Sheridan Case. We don’t know what the jury would have said if they had been asked to return their verdict – but what the judge is saying is EVEN IF they had said ‘yeah, he knew he was lying’ that wouldn’t have been enough to prove perjury because the relevancy would ALWAYS have been missing.
So, from all this, two sets of questions arise. The first is why did Coulson’s defence team only brought this up recently? Well, it seems that they didn’t. Before the trial began, the defence team appear to have raised a ‘plea to the relevancy’ of the indictment – the legal version of going “Yeah – so what”. The Judge, rightly in my view, decided that in order to assess the strength of the case he had to hear what the case actually was. If this was a civil case, it’s be called a “proof before answer”, the judge saying “I’ll know it when I see it”. In this case, after the prosecution finished its case on Friday, the judge wanted to assess the evidence and make his decision. He did this over the weekend.
He decided that the prosecution had failed to meet all the parts of the perjury test, and so had failed to bring a relevant charge. The defence’s plea to the relevancy was accepted so on Monday, Coulson was acquitted on the basis he had no case to answer. The rules allow the Prosecution 2 days to appeal this decision, but they have not, so everything became official today.
The second question is what this acquittal means. Firstly, and most importantly, It doesn’t mean that Coulson didn’t lie in court. It is entirely possible that Coulson’s pants smoulder at this very moment, but we don’t know that he has. We just know that he did not perjure himself. But it is also important to note that Coulson didn’t “get off with it” on a technicality. It isn’t corruptions or a swizz or a bit of legal magic – it is a contention that the accused person did not break the law. Any defence lawyer worth their salt would have raised the point that acquitted Coulson today. I know that because of a very simple reason: The source I cited earlier on.
The Stair Memorial Encyclopaedia is the Bible of Scots Law. All Scots Law. Every lawyer, legal scholar and law student in Scotland will have access to it somehow. In their firm’s Library, on-line, at University – they’ll have it. And if they follow the citation above, they’ll find the important page. At paragraph 474 in section 18(1)(b) in the Criminal Law Volume (re-issued), they will find the sentence, “To found a charge of perjury the evidence given at the original trial must have been relevant and competent [emphasis added]”. It’s there for everyone to see. It is just as important a part to the Scots Law definition of perjury as the “lying under oath” part is. It is not a technicality; it is the law.
All of this overlooks the fact that, even if Coulson’s testimony were relevant in Sheridan’s perjury trial, and even if Coulson had been found guilty…it would all have been very unlikely to have helped Sheridan overturn his perjury conviction, nor strengthen his case in the News of the World’s appeal in their defamation action. To Use the words of Andrew Tickell (or Peaty to his friends), “Sheridan wasn’t convicted on the evidence of Andy Coulson“.
So, as exciting as all this was…it was never going to lead anywhere meaningful.