Bismarck's sausage

Law and sausages. Everyone knows Otto von Bismarck's famous, perhaps apocryphal, observation that you don't want to see either being made. Compressing mechanically-recovered meat slurry into more or less edible bangers can't be pretty. Legislation's gruesome aspect comes in different forms. Compromised, unprincipled, and sometimes just dawg gawn incoherent - some of the Acts emerging from parliament require a strong stomach or a crippling cynicism fully to appreciate. But Bismarck was an authoritarian old sod, and in any case, a certain messiness is democratic. Consensus is hard won, and often better reflects and accommodates disparate strands of opinion than a pristine conceptual scheme, sprung from a single head.

Sometimes though, it isn't just the process which makes you queasy, but the outcome. Sometimes, neither the law nor the sausage comes up to snuff.  In some respects, I'm beginning to wonder whether Holyrood's Scottish Independence Referendum Act of 2013 is one of the duds. A few weeks by, I suggested that one significant problem with the legislation is that it hasn't been drafted in full appreciation of the disparate nature of the Yes campaign and the range of citizen-led organisations involved.  There are now signs that the Act also seriously fails to take the digital context of the campaign properly into account. 

Recently developments have crystallised those anxieties. The Electoral Commission have issued this guidance for campaigners in the referendum. It isn't aimed only at those organisations who've signed up for "permitted participant" status and gained the right to spend up to £150,000 in the campaign, but at the whole gamut of campaigners in this poll, which is to say, everybody agitating for one side or the other. It made me go back to the legislation, where I made this startling discovery.   

Paragraph 27 of Schedule 4 regulates any and all publications during the referendum's regulated period - which we're just entering. On penalty of criminal prosecution, material "wholly or mainly relating to the referendum" - whether printed or online - is not to be published unless it is accompanied by the name and address of the individual or organisation promoting it.  Failure to comply can attract a fine of anything up to £5,000. So what's this about? On the one hand, this rule has obvious applications. It wouldn't be transparent or fair, for example, for a shadowy organisation agitating for a No vote to distribute obnoxious fliers, purportedly from the Yes campaign, with a view to buggering up their opponent's case and cultivating a false and negative impression of its argument. And fair enough as far as it goes.  But the rule set out in the legislation goes way beyond this.

What is moderately disturbing about this requirement to publish your name and address is that - legally - it is not limited in application to Yes Scotland and Better Together, to political parties, or to "permitted participants" like Women for Independence or Vote No Borders. Its strictures attach to any published material "wholly or mainly relating to the referendum." That means that it covers tweets, facebook posts - the whole gamut of social media, in fact - which is made "available to the public at large, or any section of the public, in whatever form and by whatever means" and which "relates wholly or mainly to the referendum." Given the popularity of these sites, chances are, it means you and anything you write or say on them about the September poll. Which is mental. 

In its new guidance, the Electoral Commission suggest that campaigners embed an "imprint" of this information on their Twitter profile using a link-shrinker. But understandably, few folk discussing this online are liable to be particularly keen to broadcast their location and sometimes their identity to heaven knows who.  When this came up on twitter yesterday afternoon, a number of folk protested that these rules apply only to registered campaigners. But look at the Act. You'll find nothing in there restricting these publishing rules to the bigger campaigning organisations. 

Indeed, the opposite is true. The legislation specifically limits the application of some of the rules to registered campaigns. For example, the duty to report donations over £500 doesn't attach to unregistered individual and bodies who don't intend to spend more than £10,000 in promoting their preferred referendum outcomes.  We find no such specification when it comes to these publishing rules. Applying ordinary principles of statutory construction, that means that the requirement to attach your name and address to referendum publications, in principle, attaches to anyone and everyone. The explanatory notes accompanying the Act (particularly paragraphs 185 to 186) support this broad reading of the provisions, as extending beyond the bigger campaigning bodies. 

The upshot? Every idle, inane, unserious tweet touching on the poll seems to count as a publication under the legislation. Every twitterer, or facebook user who shares thoughts "wholly or mainly relating to the referendum", without telling the whole world where they stay, is violating the law of the land and at-risk of being screwed out of five grand. In practice? There's a snowball's chance in hell that the Electoral Commission will enforce the law as passed to its full extent, stifling free expression and interfering inordinately with peoples' privacy. The Commission indicates in its guidance that it "will not usually consider taking enforcement action where it is clear from the document who is responsible for its production." While you can work out my identity from my profile, the same doesn't go for many other, perfectly civilised, bloggers and tweeters involved in the referendum debate. What of them?

It is all very well for the Electoral Commission to work around the law's absurd breadth and lack of social media savvy - but why the devil didn't it occur to our politicians, when passing this Act, to factor in the contemporary realities of the online dimension, which feature so prominently in the #indyref debate? The provisions in the Scottish legislation are substantially based on a piece of Westminster legislation which is now almost a decade and a half old, pre-dating the rise of facebook and twitter's flourishing. Why didn't our MSPs take free expression seriously enough, to affect a work-around and to reflect the new age of mass citizen "publishers" with a thing or two to say about political affairs?

Applying the legislation in practice, I find it impossible to believe that the Commission will despatch its inquisitors to winkle out the identities of folk like @loveandgarbage. Individuals wittering about the referendum will almost certainly avoid being fleeced in the courts for their failure to comply with the law. But that is what the law Holyrood adopted to regulate this referendum enshrines.  

Several areas of civil and criminal justice now struggle to keep up or cope with recent developments in social media. As the Sally Bercow-Lord McAlpine set-to demonstrated, the circulation of rumour dovetails untidily with the assumptions undergirding defamation law in the UK. Our legislation on contempt of court has been put under significant pressure by jurors' ability to research the accused person they are trying with a couple of clicks of a button. But given the prominence of social media in this campaign, it is disappointing and distressing to see Holyrood unimaginatively adopting such an outmoded and cavalier approach to the liberties of participants in this debate. This is one dodgy sausage.

The inevitable Thatcherite edition...

We couldn't escape it.  After a week off, the For A' That podcast is back, and like the rest of the political sphere, we couldn't resist chewing over the legacy, character and politics of the recently defunct Margaret Thatcher.

What to make of the week's reaction - positive and negative - in the press? From a Scottish angle, does Scotland, with its now reflexive rejection of the Lady and Her Party, remember or misremember the Blessed Margaret and the charm she exercised on our fellow citizens between 1979 and 1990? Contemporarily, does this anti-Thatcher sentiment really reflect a Scottish social democratic consensus, or is it a comfortable, self-serving and ultimately conservative nostrum? What to make of the fact that Churchill warranted 45 minutes of tributes in the House of Commons, while last week's comments on Thatcher ran over six hours. Have we become gey sentimental?

We also discussed the stramash around National Collective, and its legal difficulty under the law of defamation.  Download the latest edition of the show here, or listen to the conversation via iTunes.  You can also subscribe to our RSS feed, so you can be sure you won't miss any of our broadcasts.

Misleading anti-Nationalist invective, Vol. 56...

Someone’s been nibbling the bitter almonds. In the Telegraph this morning, BBC lawyer Alistair Bonnington has written an extraordinary gouge-piece attacking the SNP, and Kenny MacAskill, under the headline “SNP’s arrogance leaves Scottish libel law stuck in the past”.   

My interest was piqued by the queer combination.  There has been little to no commentary on the fact that the Defamation Bill currently wending its way through Westminster means only means to apply in England and Wales.  As usual, the press commentary has tended to forget that we live in a union state, not a unitary state, and that the Bill’s provisions as introduced – limiting defamatory statements to those whose publication has or is likely to cause ‘serious harm’ to reputations, enhanced protections for writing published in peer-reviewed academic journals, for operators of websites attracting potentially defamatory comments – would only reform the English and Welsh law of slander and libel, leaving Scotland’s defamation law intact. Back in June, I speculated on the consequences which these English reforms might have for Scottish courts.

In his piece this morning, Bonnington sketches an ugly picture.  For him, the Defamation Bill is ‘a reasonable set of rules for the modern world’. Rules which Bonnington believes the SNP have conspired to defeat for suspect reasons.  He writes:

“Scots media lawyers have noted with some disquiet that Kenny MacAskill, the Scottish Justice Minister has decided to reject almost all of the Bill’s liberalising provisions and include only one minor subsection.”

“In libel, Scots law is miles behind English law.  That gap is about to become wider still courtesy of Mr MacAskill.” 

He buttonholes this with the suggestion that...

"... the Legislative Consent Memorandum announcing this decision came out in June at a point when the parliament at Holyrood was going on holiday – a ploy possibly aimed at preventing any opposition MSPs from having the effrontery to ask questions about this daft decision."

Bonnington then goes on to summarise the measures proposed in the Bill in warm terms: various new defences and the welcome reframing of definitions of defamation. The sting:

“MacAskill’s policy seems to be to deprive Scots law of these important liberalising and modernising measures – for no other reason than to be different from England.”

Reading this, I thought I’d been seriously remiss.  Bonnington’s trenchantly accusatory piece makes three critical allegations and insinuations. Firstly, he implies that comprehensive defamation reform was put to the Scottish Government by Westminster, to liberalise the law on both sides of the Tweed, to protect freedom of speech and melt the perceptible "chilling effect" of the current law on defamation. Secondly, that the Scottish Government knocked back this request from Westminster, grudgingly instead accepting only a peripheral subsection in their legislative consent motion.  Thirdly, Bonnington suggests that that the Cabinet Secretary’s motives for this limited motion were scurrilous, allowing atavistic legal nationalism to trump a sensible and liberalising reform. As neatly as these allegations fit with certain cherished suspicions of Scottish Nationalists, and as satisfying as Mr Bonnington clearly seems to find it to fulminate and froth against such perfidy, there doesn’t seem to be a breath of truth in any of these claims.

Pick up the Defamation Bill which Ken Clarke introduced to Westminster in May this year on behalf of the UK government. Bounce your eyes down the page, to section sixteen, “short title, commencement and extent”: “This Act extends to England and Wales only”. That seems tolerably categorical. So when and how did Scotland get roped into this, you might well wonder? Bonnington’s brain is haunted by reactionary SNP ministers, haughtily rejecting the overtures of Westminster’s solicitous, sensible modernisers.  If that were the case, a dip into the House of Commons' Public Bill Committee records should surely uncover a word or two about them and their activities, and critically, an amendment proposing that the whole Bill be extended to Scotland. You won’t find one. You can’t. It doesn’t exist. 

Here’s what Jonathan Djanogly, Tory MP Huntingdon and Parliamentary Under-secretary to the Ministry of Justice, contributed on Tuesday 26th June 2012, lodging government amendments which would extend the Bill’s protection for academic publications to Scotland.  Djanogly said:

“Amendments 1, 2 and 3 extent certain provisions of the Bill to Scotland.  The civil law on defamation is generally a devolved area, and the Bill reforms the law in relation to England and Wales only.  However, we have been requested by the Scottish Government to extend certain specific provisions to Scotland, and these amendments are intended to fulfil that request.  The Scottish Government have confirmed that a legislative consent motion will be put before the Scottish Parliament on a timely basis following these amendments being moved in order to secure their consent.”(Col 170)

One doesn’t have to be an honorary professor to see that asking for sections of the Bill to be extended to Scotland isn’t easily constructed as rejecting “the Bill’s liberalising provisions” for the idle sake of being different from the English. To double-check, I rummaged around Holyrood’s archive for June, and up popped the pertinent legislative consent memorandum, from Kenny MacAskill’s hand. The Scottish Government don’t see reform of the Scots law of defamation as a priority, he writes, but having considered extended privilege to scientific and academic activities, it was concluded that:

“…the parity of protection across the UK was desirable given that much scientific and academic research is done collaboratively and without reference to national borders. Therefore, limiting these provisions to England and Wales only could potentially inhibit constructive and robust scientific and academic exchange.” [para 26].

Despite Bonnington’s preferred narrative of nationalist mischief, I can find no evidence whatsoever suggesting that Westminster has ever proposed to Scottish ministers that the Defamation Bill should simultaneously reform Scottish and English law, nor that they ever enjoyed the formal opportunity to accept or reject such a proposal.  You might well think that this is for the bad, and that it would be preferable if Scots law mirrored the English proposals, which will substantially shrink the scope of defamatory speech, and enlarge on the defences available to those sued in particular scenarios.  I have some sympathy with that perspective.

Each man may be guilty of the good he does not do, and the inactivity of the Scottish Government on defamation reform may well be complacent, but the scenario which Bonnington so ill-temperedly promotes in this Telegraph piece is simply fictional. To avoid Bonnington’s wroth, MacAskill would presumably have been obliged unilaterally to ask Westminster to pass defamation legislation for us. The distinction between acts and omissions may be of philosophical interest, but the impression aggressively cultivated by this piece of invective is seriously misleading.

Scotland, slander & calumny...

Terence Ewing is a vexatious litigant.  In 2008, believing himself to have been defamed by the Times newspaper, and his case before the English courts having failed, he took himself away on a little jurisprudential tour, up to Belfast and to Edinburgh.

Having arrived in the capital, Mr Ewing hied himself to a public library, where “he downloaded the internet version of the article and read a hard copy of it”.  He promptly raised further legal actions in the Scottish and Northern Irish courts, claiming again that the Times had defamed him.  

In the Court of Session, his case was dismissed in an acid opinion from Lord Gill – the incoming Lord President as is – who described Ewing as a “serial litigator with a long and well-documented record of mischievous and irresponsible ligitations”.  In Gill’s judgment, Ewing had “no connection with Scotland and has no apparent reputation here to defend”, and his appeal was comprehensively refused.

It takes a particularly committed warden of a reputation, actively to travel across jurisdictions to read an article in which you are dishonoured, and I dare say few folk are as committed as Mr Ewing to the business of protecting their names. Yet for calculating so-and-sos, libel litigation on their mind, there may be clear advantages in selecting the legally most congenial forum for the airing your disputes.  For my part, I’m no expert on the law of defamation in any of the UK’s jurisdictions, but I’ve been wondering recently if we’re failing to spot the potential implications of the Westminster government’s upcoming reform of the English and Welsh law of libel and slander. Scotland isn’t exactly inundated with defamation actions at the moment, but might that all be about to change?

Save for Tommy Sheridan’s disastrous foray into our civil courts, we don’t hear a great deal from the Court of Session about alleged calumnies, slanders and libels, reputations ruined and restored.  The Times Scottish correspondent Angus MacLeod unsuccessfully sued the publishers of the Sunday Herald for defamation in 2006, over slighting observations made about his analytic nous in Alan Taylor’s diary.  More recently, former SSP MSP, Frances Curran, sued the Daily Record, over an article which appeared in its pages, in which she was branded a “scab” by the Satsuma Socialist after his successful defamation action of 2006.  Curiously, the Court of Session held that “scab” was not defamatory, as it was “criticism of public conduct in the context of a political struggle” which fell “well within the latitude permitted by the law where comments are made about persons acting in their public capacity”.

By contrast, down south, libel law has been a point of more directed political agitation for some time, and formed part of the Labour, Liberal Democrat and Tory manifestos in the 2010 Westminster General Election. Calls for reform were encouraged by controversial cases, including the British Chiropractic Association’s extended libel litigation against Simon Singh, who criticised their activities in a Guardian column.  The litigation took two years.  

For would-be libel reformers, a major spur to their endeavours have been concerns about free speech and the way in which libel law has been manipulated by powerful interests. While theoretically universal, there to protect the reputations of all persons against malicious falsehood, the expense associated with resorting to the law of libel primarily protects those with wealth enough to retain lawyers.  Yet much of this zealous, reforming advocacy talks about chimerical concepts - “British courts”, “UK law”, “our law” - which gives the impression that we currently have a uniform law of defamation in this country. Which of course, we don’t. 

So what might we be overlooking? While in Scotland we’ve got almost no libel reform pressure to speak of, in Westminster, the coalition have finally introduced a draft Defamation Bill to curb the vigorous jurisdiction of England’s libel courts.  In Scots law, defamation is defined as anything which “tends to lower the pursuer in the estimation of right thinking members of society generally”. The question a court must ask itself is: “Would a reasonable man [sic], reading the publication complained of, discover in it matter defamatory to the pursuer?” In England and Wales, by contrast, the Westminster government wishes to qualify this test.  Assuming that the critical section of the draft Bill passes through parliament unaltered, in future, a statement will not be “defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

It should be obvious that this will be a theoretically much more stringent test for the English litigant to overcome than a Scottish pursuer pursuing a defamation action will have to satisfy. The draft Bill also proposes to amend the defences available to English defendants, including specific protections for “operators of websites” which host defamatory comments, and attaching privilege to peer-reviewed statements in scientific or academic journals.  

No reforms are currently envisaged for the Scots law of defamation, and the coalition government’s Bill currently extends to England and Wales only.  I’m conscious that we get into very tricky terrain here, with thorny legal questions raised about where websites are hosted, which courts have or should have jurisdiction, or whether damages are calculated in Scots law will encourage or deter litigious jaunts north of the border, if this Bill passes. 

I’m no practitioner in this field, and currently ill-qualified to take an informed view on the likelihood one way or the other.  It may well be that Scottish courts will be able, by deploying a range of techniques, to protect themselves from an influx of opportunistic litigants, keen to avail themselves of our soon-to-be less stringent rules on what is or is not defamation of a person’s reputation.  However, as the Sunday Herald’s legally canny publication of a certain “unidentified” footballer’s phizog on its front page ought to remind us, it is generally very unwise to forget that the UK doesn’t have one legal system, but several.  Neglect the impact they may have on one another at your peril.

Tommy's Python: "It's just a flesh wound!"

Mater Peat Worrier is no devotee of Monty Python, but I chortled at her reaction to recent press reports covering Tommy Sheridan's still-to-be-lodged appeal against conviction, potential "new witnesses" who have suddenly appeared in support of that appeal, today's Herald piece on contradictions in the evidence one of them and the news that Sheridan is plotting still further legal action against his old foes the News of the World and the Metropolitan Polis. You'd think that extended exposure to our courts might have slaked Mr Sheridan's thirst for litigation, not least with the imminent prospect of a return to the Court of Session to mount one last Quixotic defence of the paper's appeal against the civil jury's verdict in the defamation action of 2006 and the grim prospect of Lord Bracadale's penal tones as he consigns Sheridan to a jail cell for an as yet indeterminate period. Apparently not. Like Monty Python's Black Knight, Sheridan's constant refrain is "it's just a flesh wound!"

In another related piece, James Doleman, author of the Sheridan Trial blog, has composed a fascinating piece for the Gurnian entitled "Blogging from court: helping justice to be seen to be done". James meditates on his - quite novel - experience of using a blog to cover, often much more extensively than the popular press, what transpired in the High Court in Glasgow. Like many novelties, one gets the sense that the experience was challenging for James and challenged the settled human architecture of the courtroom, most strikingly by subverting - by his very presence - the orthodoxy that the press are the simple proxy for and medium through which public interest in a case must be communicated.

Tales from Parliament House Vol. 5.

I thought the relevant passage was in Robert Louis Stevenson's Edinburgh: Picturesque Notes, but a quick look suggests I'm mistaken. At any rate, somewhere in the limited canon of literature which mentions the Court of Session, an author sketched one of the "Parliament House characters", infamous in his own day. This anonymous soul had a reputation for enthusiastic, serial and spurious litigation. Off the top of my head, I seem to recall that the piece comically recounted how this chap had simultaneously attempted to sustain two logically incompatible pleas in two different courts. Their Lordships happening to confer over lunch, the wretched man lost both causes. In any case, his hunger for actions and causes was not abated by this minor setback and he continued on his long, unsuccessful career as a long suffering party-litigant. The character came to mind yesterday, when I happened across the disposition of the reclaiming motion in the case of one Terence Patrick Ewing v. Times Newspapers Ltd. In this case, however, the serial suer was not a homegrown eccentric, but a English tourist who went to extraordinary lengths to try to be defamed in Scottish jurisdiction. Lord Gill, the Lord Justice Clerk, along with Lords Marnoch and Mackay of Drumadoon brought a brutal end of Mr Ewing's litigation in the Court of Session with the assessment that he had:

"... inflicted needless expense on the defender. He has imposed a needless burden on the overstretched resources of this court. It is time to bring down the curtain on this action before further time and money are wasted."

The whole judgements effuses a sort of measured, starchy disgust. So what the devil did Mr Ewing do? A number of things, as it happens. From the judicial documents, the whole story and its characters lurch from absurdity to pitiful absurdity. The action originated in an article which appeared in the Sunday Times and online on Times Online concerning planning applications in Weston-Super-Mare (one has to love the trivial sites in which law's stately grandeur unfolds). I quote from the Scottish Court's judgement:

"The essential points in the article complained of are that a body called the Euston Trust, with which the pursuer is associated, took a secret payment of £10,000 to drop its objections to a £16 million development in Weston-super-Mare; that the Euston Trust had objected to dozens of developments across Britain since its inception four years earlier and was suspected of taking money from other builders; that the pursuer told the Sunday Times that he intended to target the £2 billion redevelopment of derelict rail yards at Kings Cross and that in September 2005 at a meeting with a firm of housebuilders the then secretary of the Euston Trust, Keith Hammerton, said that he believed that the pursuer had often taken payments from other developers. According to the article, the minutes taken by an independent solicitor recorded a comment by Mr Hammerton that he had suspected for some time that the pursuer had received payments from developers to pull out of intended judicial review challenges. The article recorded that the pursuer emphatically denied having been offered, or having taken, payments from developers and said that Mr Hammerton, from whom he had dissociated himself, had not passed on the £10,000."

The paper basically alleged that Ewing was a rather dishonest and conniving "professional nimby", who turned his oppression into a not-so-quick buck, with planning applicants paying him to sod off  This Euston Trust was "an unincorporated and unregulated body run from a North London council flat by the claimant" - namely Mr Ewing - who amongst his other accomplishments is also "a convicted fraudster". Owing to no less than 37 actions raised by Mr Ewing, in December 1989 the English High Court declared him to be a "vexatious litigant," imposing certain judicial limitations on his capacity to indulge in his apparently endless and obsessive litigious hobby. Since 1989, Ewing has apparently petitioned the High Court to allow him to institute proceedings in no less than 19 other matters. A thirst unquenched, methinks. In the Scots judgement, the Lord Justice Clerk numbered:

"Ministers of the Crown, the Director of Public Prosecutions, the Security Service, the Registrar of Companies, the Criminal Injuries Compensation Board, the Legal Services Ombudsman, local authorities and developers are among his many victims."

One English High Court judge described him as having a "veracious appetite for civil litigation" and a rampant disposition not to pay the costs he imposes on those he takes it into his mind to sue. His case against the Times was just another in an unsuccessful train of actions, with Mr Justice Coulson refusing him leave to bring proceedings in England in 2008. The judgement is full of odd flourishes and droll understatement from the learned judge, which I can hardly do justice to in this truncated summary.  It also adds another charming feature to the twisted and knotted grain of Mr Ewing - in his legal letters, he likes to lapse into insulting and racist language and freely confess his pettifoggery. But what to do now? Despite an appeal, his English case seemed to have sputtered to a halt. Here is where the matter takes on a Scottish savour. Having had his claims repelled on a number of bases in England, he was not so readily to be defeated. Mr Ewing then promptly:

".... travelled to Scotland where he downloaded the internet versions of the article and read a hard copy of it in a public library. In June 2008 he raised the present action."

And to keep as many legal irons in the fire as possible, Mr Ewing took another wee trip. In Lord Justice Clerk Gill's words:

"At about that time the pursuer, seeking to be defamed in Northern Ireland, travelled to Belfast, downloaded the same versions of the article and read a hard copy of it. He then served two writs on the present defender in the High Court of Northern Ireland."

Things got a bit sticky for our "hero", however, when in December 2008 the Scottish judge Lord Brodie, ordered Ewing to produce £15,000 in caution in part citing Ewing's past conduct as a:

" ... determined recreational litigant with little regard for the constraints that the courts have attempted to impose, no appreciation of the proportionality of his actions and no concern for the financial interests of others."

The appeal before the Court of Session was primarily concerned with this caution. As noted at the outset, the hope was forlorn and the judgement crashes down in a quietly damning, understated way:

"The present action arises because the pursuer came to Scotland to acquire a cause of action. He has no connection with Scotland and has no apparent reputation here to defend. If he should have suffered hurt feelings when he read the article here, his hurt is self-inflicted. Even if there were to be a vestige of merit in the claim, this action would be disproportionate to its value."

To fritter away one's days with these persecutions, wringing happiness and significance from serving writs - its a pitiful caviling game. To offer Mr Ewing some constructive advice, might I suggest that he delves into some Stoic philosophy - the Meditations of Marcus Aurelius may be a splendid start - and slowly learn the art of not staking his happiness on other men's souls. It'll make for a far more healthsome and satisfying existence, I assure you.

Sheridan Case III: "...the law's delay"

“For who would bear the whips and scorns of time,
The oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office and the spurns
That patient merit of the unworthy takes…”
~ Hamlet, Act III, Scene 1

Tommy Sheridan knows a good deal about the insolence of office and declaims regularly about what he takes to be the oppressors’ wrongs. That much we all know. Whether he has known the pangs of love – or was scourged by mistresses more mortal than cronely Time – that is a matter for the jury to decide. The Sheridans’ much anticipated trial for perjury – and in Tommy’s case, for attempting to suborn perjury from Colin Fox – also seems testament to law’s delays. Initially, it was expected that the trial would convene in February of this year. Not so, with Sheridan giving his leading counsel, the fantooshly face-furnitured Donald Findlay QC, his jotters last September. We’ll draw a discreet veil over what made him change his mind, and move on without speculation. Sheridan substituted in the less rambunctious Maggie Scott QC, who advised the Court in the following October that “given the interruption of Christmas, the start of the trial in February is wholly unrealistic”. As of this morning, the Court has determined that the 21^st of September is the most realistic date for the trial’s commencement, some seven-odd months after the date which was initially mooted. Some of this is certainly attributable to the change in Tommy’s leading counsel. His wife, wee Gail, will be represented by Labour-turned-Tory legal gobsworth, Paul McBride QC.

Moreover, we might also reflect on the significant imbalances in the parties involved. After all, Crown Counsel, prosecuting, lean on a busy network of procurators fiscal, “little elves and sprites to do his bidding”. While disclosure of any evidence gathered is a theoretical mechanism to balance up the competition, defending counsel can still cut an isolated figure among his or her tottering towers of documents, with only a very small train of junior helpers. Let me remind you, this trial is anticipated to take a whopping three months to bring to its final conclusion, with the figure of 180 testifying witnesses being mentioned in the press coverage. With that much legwork to undertake, the pacing defender would develop well-turned cabriole legs in no time. One final point, connected to my recent post on the evidentiary rule requiring corroboration in Scots criminal law. I notice that press reports are quite accurately stressing the novel charge on the indictment – that Sheridan attempted to convince Colin Fox to lie in the 2006 defamation trial. Assuming that Mr Fox himself is the primary source of evidence on this charge – I merely remind you that corroboration will require something apart from Fox’s evidence to make a conviction for suborning perjury competent in law. I enlarged on the proposition when the indictment against the couple became public. The Crown are doubtless well-acquainted with this fact. Thus far, it is no clearer what mysterious piece of corroboration the Crown might have got its hands on. It seems that we’ll just have to lean on our patient merit and wait another seven months to find out.

Sheridan: "Not guilty, m'lud!"

Lord President Emslie took a dim view of perjury. In the case of Gerald Hagen v. H.M. Advocate he said that perjury is a crime which “strikes at the very roots of the rule of law and the administration of justice”. The Crown Office claim that the aforesaid Thomas Sheridan tugged at those roots in the course of his defamation action against the News of the World, and in victory, upset the foundations of public justice. In law, perjury is defined in a rounded, commonsensical sort of way as the act of wilfully making a statement in judicial proceedings, under oath, which is false.

As of today, we now have the indictment which Tommy will have to answer. It must make pretty bleak reading. In particular, a few points should be keep in one’s mind, when reviewing press reports and thinking about the context. As folk will probably recall, the News of the World alleged that Tommy indulged himself in rutting escapades. Sheridan denied this in a party-litigant tour de force. With grandiloquent pseudo-proletariaterie, the former MSP convinced a civil jury that he was the tragic victim of a malicious, Murdoch-mandated stitch up. Damages were awarded in the amount of £200,000.

The evidence, however, was notably divergent on several key points. In particular, and for politically curious creatures, particularly interesting – was the meeting of the Scottish Socialist Party “chief equals” on the 9^th November 2004. In the course of that august convocation, it was claimed that Sheridan fessed up to his libido-stoked outbursts of lusty clubbing. Who danced attendance at this Executive meeting? The list is long. Including most of the Party’s ex-MSPs and apparatchiks – Allison Kane, Keith Robert Baldassara, Alan William McCombes, Allan Green, Colin Anthony Fox, Barbara Jane Scott, Carolyn Leckie, Catriona Grant, Joanna Harvie, and Rosie Kane - who all flatly insisted that Tommy did admit he got up to extra-marital mischief in Manchester.

Note the legal specificity of the charge. They question ‘did Tommy go to the Manchester coital club’ is not being rehashed and isn’t at issue as crucially as it was during the civil trial. Rather, most of the perjury charges rest on whether he told the rest of his party members that it was true – and subsequently lied to civil jury and court about doing so. Arguably, its of no matter whether citizen Sheridan did or did not go swinging, since the focal point of this bit of the perjury case seems to be on what was said about the swingers club, not the grotesque, pendulous question of whether he swung. However, that aside, other allegations of perjury do engage with this question of marital infidelity, in particular, in relation to the alleged affair with Anvar Begum Khan and Katrine Trolle.

Perhaps the most potentially interesting – and unexpected – narrative section of the indictment comes right at the beginning. In addition to the charges of perjury, Sheridan is also to face an allegation of attempting to suborn perjury. The subornee? Colin Fox. The evocative setting? The Beanscene 67 Holyrood Road. The date: 18^th June 2006. It is suggested that, well-knowing what Fox would say from the witness box, Sheridan attempted to induce Fox to disclaim the minutes of the controversial SSP Executive meeting as false. Presumably, the event of the 18^th was a private affair – my word against his over skinny lattes - unless Fox had the cunning and secretive foresight to tuck a voice recorder down his codpiece for the duration.

It seems clear, even at this stage, that the Crown case will focus its red-hot attention on this SSP Executive Meeting. For those of you who pine for socialists circa 2003, expect to see the promenade of fierce dames from the SSP marching in and out of Glasgow’s High Court. Expect a sparky encounter. After all, if Tommy is telling the truth – the coordinated phalanx of perjurers is on the other side and Sheridan as the impugned honest man is cast as the stoical victim of machination and intrigue. Tactically, this is cunning stuff from the Crown Office. The meeting seems the least probable part of Sheridan’s case, assuming that the majority of witnesses were being even averagely honest and that in fact, no sly socialist fraudulence was in motion. So a different jury will decide, and given the onus of the indictment, ostensibly on rather different issues.

Whatever the decision, the coverage will be vivid, courtroom drama stuff. Given that a conviction on any count almost guarantees Sheridan a jail term, I’m sure that is sharply focussing his mind. On the evidence at hand, however, it doesn’t seem rosy for Tommy. Although one jury must have accepted his version of events – in particular of the contested meeting – there is no guarantee another will do the same. Particularly since the ‘opponent’ isn’t the scabrous News of the World, who are always worth a good, civilised kicking.

For those of you who enjoy interminable successions of words without punctuation – and want the detail sans my blawging prose, the Herald have the full text of the Sheridans’ indictment here.