Coulson: crossing the Rubicon...

I've taken an interest in the progress of Strathclyde Police's Operation Rubicon. I'm privy to no information on the Scottish phone-hacking investigation beyond what is in the public domain, and thus far, that data has been scratchy and difficult to interpret.  For Scottish politics, and a Scottish analysis of media and police transgressions, Rubicon really is the only game in town. Senior Holyrood politicians have seemed content either to conceive of phone-hacking as a Fleet Street problem, or in the alternative, only display political enthusiasm for the topic when it seems a promising, partisan weapon with which their opponents can be gouged.

Neither position seriously addresses the essential questions: to what extent were the Scottish press or Scottish editions of UK papers engaged in the sorts of illegal practices which have been uncovered elsewhere? How many Scots were victims of the predations of an intrusive press? To what extent, if any, did Scottish police officers corruptly connive with journalists? These are questions which one can reasonably expect a Scottish Parliament to take an interest in.  Hitherto, the institution has assiduously avoided doing so. 

Leveson's attentions being largely directed elsewhere, absent a discrete Scottish inquiry, Rubicon is realistically the only process by which we might receive any sort of answers to these pressing questions. For that reason, the impression that the Operation was being scaled-back was dismaying. Leveson certainly seemed to imply that officers were focussing their attention on the Sheridan case, but Strathclyde Polis say not. Yet to date, eleven months after the Operation began work, there still have been no arrests beyond the narrow circumstances of the Sheridan trial.  Coulson's arrest and charge is clearly significant - I make no bones about that - but it does not address the more expansive, arguably more significant aspects of the investigation which Strathclyde has been mandated to conduct. Remember, the Crown Office gave them the following terms of reference, to investigate:

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.

Coulson's arrest and charge clearly only addresses the first dimension of this fourfold mandate, and offers no assurance about how the other three more encompassing concerns might be being addressed. What's more, Coulson's arrest arguably only perpetuates, rather than challenging, the idea that phone-hacking was mostly a mischief of the London press.  But for Tommy Sheridan's summons to appear as a witness in his defence, Coulson should never have set foot in a Scottish court, nor offered the testimony for which he has now been charged. Does Coulson's arrest presage a cavalcade of activity? Who trembles or ought to tremble? Mibbes aye.  The Daily Record had an interesting article yesterday on this very point, suggesting that despite the lack of arrests thus far, Rubicon has yielded damning material, which may yet rebuke the First Minister's complacency:

"Police believe that the Scottish hacking victims would not have been of interest to London editorial executives at the paper. Instead, they believe that orders must have come from Murdoch operatives in Scotland to have these people looked at."

A "source" is further quoted, suggesting that:

“Operation Rubicon has uncovered widespread malpractice – in connection with the Tommy Sheridan case but also in connection with phone hacking. Our main focus has been on who ordered illegal activities. It is fair to say we are confident that there will be further arrests.”

And what of the perjury charge made against Coulson? A few cautionary thoughts on point.  Firstly, being charged does not inevitably entail a prosecution. According to the most recent figures on Scottish criminal proceedings, in 2010/11, the Procurator Fiscal received 266,000 criminal reports, of which 130,000 resulted in court proceedings (49%).  Cases may not be taken up for a range of reasons.  Evidence may be too limited, procurators fiscal may determine proceedings aren't in the public interest, or unforeseen legal difficulties may put pay to a promising evidential case. Either way, there's absolutely no inevitability that a charged person will end up in the dock to answer that charge before a judge or jury.

Secondly, as Paul McConville has exhaustively laid out, the Scots offence of perjury has some eccentric features.  While conventionally understood simply as lying under oath, our criminal law applies additional strictures to what is and is not perjury. A sworn, fibbing witness in a Scottish court only commits the offence of perjury where their falsehoods are evidence that is both "competent and relevant".  Per Lord Emslie in Lord Advocate’s Reference No 1 of 1985...

“... a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial, either in proof of the libel or in relation to the credibility of the witness.”

Paul's post focusses on the issue of relevance, but an improbable example can quickly sketch the main features of the doctrine, and suggest its potential implications in Coulson's case. Imagine you were called witness in a simple assault case. Penned up before the court, you find yourself faced with a mutton-chopped and bewigged inquisitor, who eccentrically believes that witnesses who favour mint chocolate chip over strawberry ice-cream tended to lack credibility with Airdrie juries.  His cross-examination having hitherto gone poorly for his client, this canny Cicero decides to launch this gelato exocet your way: "Well, tell the jury. Strawberry or mint. Which do you favour? It is a simple enough question."

Although a devotee of toothpaste-flavoured ices, out of queer bashfulness, you blurt out "strawberry". Cicero sits down, utterly defeated, and his client is convicted on the basis of your corroborated and otherwise honest and convincing testimony.

The thrust of Emslie's dictum is that even if it transpires that you are the chairman of the Airdrie Mint Chocolate Chip Appreciation Society, and are allergic to strawberries, your collar won't be felt by the authorities. Your conscious fib - your perjury in the common understanding - wasn't relevant to the charges the procurator fiscal made against the accused, and whatever the bungling defence advocate might think, didn't really touch on your credibility at all. In sum, your lie wasn't the offence of perjury as known to the law of Scotland.  If a case against Coulson is to be constructed, the relevance of his evidence to the Sheridan trial will clearly have to be demonstrated, whether or not he was entirely truthful or lying through his teeth throughout his evidence. Paul has some developed thoughts on the difficulty which might bedevil that process, which I commend to those seeking a more elaborated study.

Finally, a note of caution.  Folk should remember that the provisions of the Contempt of Court Act are now active in Coulson's case.  Historically, Scottish courts have been known to enforce the provisions of that Act much more sternly than the English, and nobody wants to be the first blogger to find themselves cash-sapped or in chokey for avoidable transgressions. As for Operation Rubicon, we await further developments... 

Wednesday's powderkeg: pleural plaques...

Wednesday is almost certainly going to be a wildly controversial day in Scottish politics, although as Ian Smart remarks, you'll find nary a whisper of it in the Sunday papers.  Today, the UK Supreme Court confirms that it will hand down its judgment in the case of AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) this coming Wednesday.  If you have not been following the litigation, in brief, the insurers are challenging the legislative competence of Holyrood's Damages (Asbestos-related Conditions) (Scotland) Act 2009 under the Scotland Act 1998. The 2009 Act provided that:

1(1) Asbestos-related pleural plaques are a personal injury which is not negligible.

(2) Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.

Section four of the Act provides that these operative sections should be treated "for all purposes as having always had effect" (s4(2)). Represented by the Dean of the Faculty of Advocates, Richard Keen QC, the insurers have impugned the Act on a number of fronts. Despite losing their action in the Court of Session Outer and Inner Houses, the scuttlebutt suggests that the insurers feel confident that they will carry the UK Supreme Court with them, where they failed to convinced Lord Emslie and Lord President Hamilton. Having seen the advocacy of the representative of the Lord Advocate before the UK Court, I have already suggested that it will be something of a miracle if the Act survives the Supreme Court's scrutiny unscathed, and frankly, at this stage I'd be willing to wager ready money that the Court will at the very least strike down the Act's purported retrospective application.

Given the political stooshie which blew up after the Cadder and Fraser judgments were handed down, this judgment has much, much more explosive political potential. Rather than touching on an aspect of criminal procedure, or the fairness of the case prosecuted against one man, if adverse, the AXA judgment will amount to a judicial victory for vast insurers, on human rights grounds, made possible only by their significant wealth, contrary to a democratically-reached deliberation in which the insurers participated and were disappointed, overturning the reasoning of two Scottish Courts, which will deprive a number of weary, dogged and infinitely more sympathetic litigants with scarred lungs of any recourse, their disappointments undoubtedly sharpened by their apparent victory in Holyrood in 2009. 

If that isn't a legal-political powderkeg in the present environment in Scottish politics, I don't know what is. We await the reasoning of Lords Hope, Brown, Mance, Kerr, Clarke, Dyson and Reed. On Wednesday.

Of Joan McAlpine & "distinctively English" constitutional principles...

Writing in the Scotsman this week, Joan McAlpine, journalist-turned-blogger-turned-South-Scotland-SNP-MSP, composed a jeremiad about a legal story which will, I expect, shortly be gracing most papers in the country. Her subject? The case of AXA General Insurance & Ors v. The Lord Advocate & Ors, presently up before the UK Supreme Court. The Court's website provides this brief, helpful outline of the key facts in contention in the litigation. 

"In June 2009 the Damages (Asbestos-related Conditions) (Scotland) Act 2009 came into force, having been enacted by the Scottish Parliament. It provides that asbestos-related pleural plaques and certain other asbestos-related conditions constitute personal injury which is actionable under Scots law. Pleural plaques are physical changes in tissue which lines the lungs and the chest wall. They do not actuate or contribute to potentially fatal conditions such as lung cancer, mesothelioma or asbestosis, but their existence evidences significant previous exposure to asbestos, which of itself represents a greatly increased risk of contracting such diseases. The Appellants are insurance companies whose business includes employers’ liability insurance policies. They brought a petition for judicial review seeking an order that the 2009 Act is unlawful. The petition was dismissed by the Outer House of the Court of Session and, on appeal, by the Inner House. The 1st Respondent represents the Scottish Ministers, the 2nd Respondent represents the United Kingdom Government and the 3rd to 10th Respondents are individuals who have been diagnosed with pleural plaques."

As I have discussed several times before with respect to a number of political issues, the Scottish Parliament's powers are limited by the Scotland Act 1998, which devolves all issues which are not reserved, and limits the Parliament to Act consonantly with European Union law and the human rights law emanating from the European Court of Human Rights' analysis of the European Convention.  Any law passed by Holyrood which is incompatible with either of these two constricting bodies of norms, or which relates to reserved matters, can be flattened by Scots courts, declared ultra vires and thus no law at all.  That is precisely what the litigating group of insurers are up to. As the UK Court's case summary suggests, the insurers' case was comprehensively rejected by the Scots Courts, by Lord Emslie at first instance at the very beginning of 2010, and by the Inner House of the Court of Session, in a judgment from the soon-to-be-retiring Lord President Hamilton, given in April of this year. Unusually, suggestive of the legal interest of the AXA case, a panel of seven Supreme Court Justices was convened to hear the case in London, with Court of Session judge Lord Reed substituting in for the sickly Lord Rodger of Earlsferry, the second Scots Justice on the Court, who has since passed away.  Writes Joan...

"... there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.  This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it."

The sham of the current constitutional arrangements? Mibbes aye and mibbes naw. One of the reasons Joan's argument is interesting is that it pitches traditionally-held SNP views about a post-independence Scottish Parliament into the ditch. In the party's most recent draft constitution for a free Scotland, last updated in 2002, the SNP promoted a conception of the legislative function that makes a number of breaks with the Westminster model (but significantly, shares many of the features of Holyrood at present). Article VI of the Nationalist constitution, speaking to fundamental rights and freedoms, very extensively borrows from the European Convention on Human Rights, including the Protocol 1 Article 1 rights to property, being relied on by the insurers in the pleural plaques litigation. The document also makes clear that Scottish judges will be empowered to make a determination about the constitutionality of any Act of the Scottish Parliament. Critically, in clear echo of Holyrood's current legal situation under devolution, the SNP constitution makes clear that Acts which do not observe fundamental rights will be legally void. Scottish Courts will be able to strike laws down, whatever political will generated their provisions...

Article VI, s1(a) "...no law may be passed which abrogates or derogates from the guaranteed rights and liberties".

It is familiar stuff, ritually reasserted in four swearing-in ceremonies, that the SNP believe the people of Scotland to be sovereign. It is quite another thing for Joan to attempt to borrow that sovereignty for the Scottish Parliament, particularly since the SNP are not (and to my mind, have never been) supportive of a sovereign Scottish legislature after independence, aping the English constitutional model.  Indeed, many nationalists are so hostile to the idea of parliamentary sovereignty, that they seek out ways in which Westminster may be misguided in its apprehension and assertion of legal supremacy. Lord President Cooper, making mischief in the celebrated case of MacCormick v. Lord Advocate on the Queen's right to style herself Lizzie Twa in Scotland, furnished them with the striking observation that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law".

It is easy, given the legal structures of devolution, to fling around generalised accusations that any limits on the parliament's institutional powers are constitutional shams and Westminster villainies. The irony of Joan's position is that the AXA challenge to Holyrood's pleural plaques litigation would almost certainly have happened, had the same Act being passed in an independent Scotland, shaped by the SNP constitution. For those with a keen eye and appreciation for political paradoxes, the questions before McAlpine are obvious. Does she want to transform Holyrood into a sovereign successor institution which draws on "distinctively English" constitutional principles with "no counterpart in Scottish constitutional law" - or does she wish to follow the SNP model of legislative power in an independent Scotland being limited by the judicial interpretation of fundamental rights? The two propositions are mutually exclusive.

I have rather more sympathy with the vexation Margo MacDonald will be feeling, to find that an issue she wished to pursue through legislation - outlawing exorbitant rates of interest being charged - is reserved to Westminster under the Scotland Act 1998, and thus, outside Holyrood's legislative competence. Both cases illustrate a point I've been banging on about for a good while - legislative competence issues aren't obscure, technical legal details we can afford politically to ignore, whether as political observers, commentators or members of parliament. Political competence, and a sense of what is possible and impossible, must needs be informed by legal competence.  Infelicitously, Joan also suggests in her Scotsman article that...

"That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds - the case hinges on their property rights - though stranger things have happened."

This isn't the case. In point of fact, the hearing before the UK Supreme Court was held in the middle of June, and it is the Court's final judgment in the case that we are now anticipating.  As to the character of that hearing, I can't do better than quote my own more or less contemporaneous observations, having watched the defence of Holyrood's legislative competence to pass its pleural plaques legislation. My thoughts very likely shan't bring an optimistic smile to Joan's phizog, although she may take some succor from Aidan O'Neill QC's decidedly more robust, eloquent and à point contribution in the law's justification, towards the end of the hearing...

"In the UK Supreme Court this week, the Justices heard the appeal of insurers against Holyrood's pleural plaques legislation. As those watching proceedings on the t'internet would have noticed, counsel for the Lord Advocate, Alan Dewar QC, put in an exceedingly ponderous and long-winded performance - and if Holyrood's Damages (Asbestos-related Conditions) (Scotland) Act is held to be intra vires by the UK Supreme Court, despite its retrospective application, it will be despite the potency of Dewar's interminable oral advocacy, rather than because of it."

We'll see what the UK Supreme Court decide, though given their mid-hearing rhubarbs and harrumphs, I wouldn't be surprised if the Justices object to the 2009 Act's retrospection. For what it is worth, however, I think it'd be disgusting if the insurers prevail and the pleural plaques Act is struck down. Having been extensively involved in the parliamentary discussion on the proposals, going to law in this manner is clearly venal, clearly self-serving. As a final aside, the fate of the 2009 Act ought to be taken as a salutary lesson for those minded to pooh-pooh my well-covered concerns about a legal challenge to Holyrood's independence referendum Bill. The Damages Act came into force on 17 June 2009. Lord Emslie entertained 22-day long hearings on the insurers' challenge to the legislation in the October of 2009, giving his adverse judgment in January 2010. Lords Hamilton, Eassie and Hardie didn't hand down their appeal judgment on the matter for a year and three months later. In a speedier movement, the UK Supreme Court won't be in a position to announce their final disposition of the case until after the start of their Judicial Year on the 3rd of October at the very earliest. If the commentators are correct, and canny Eck is biding his time to launch the independence referendum at the most fecund moment for nationalist feeling, all of that political calculation risks coming up nought before the law's delays.

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.

Sheridan: "time just lands in prison & there it is held fast..."

"Was this the face that sunk oor Tommy's ship
And burnt the topless tan of Sheridan?"

Stripped of the superstitions surrounding its form, at its most basic, pronouncing sentence must be a surreal experience.  Ums and aws can't be tolerated. The judge simply has to make up his mind. For the convict stood mutely in the dock, every exculpating and excusing word having been said, there is only paralysis, anticipation and the final deadening weight as your sentence is uttered. I wonder if either party gives thought to the diffuse choices which brought the pair of them to this particular pass. The jury may blame the prosecutor for making it decide, the judge can blame the jury for their verdict, the executioner blames the judge for handing down a sentence of death, and secondarily, perhaps, the axe he employs to put a grisly end to proceedings. Each, in their own way, can say with some justification "it wisnae me". 

Happily, we no longer live in times where judicial decisions have such fatal consequences, but many weighty burdens of conscience still fall on the contemporary sentencing judge. Particularly so when that judge must decide what to do with an offender who poses no risk to public safety but who has been convicted of a crime of fraudulently manipulating courts for financial gain, thereby, at least at the level of theory, laying an axe at the roots of public justice.  One year, two years, three years, four? Five? Each takes only a faint judicial breath to form and the immediate enormity of the time suddenly stretches out before the convict. His lead away. As Ewan MacColl wrote, in his Lag's Song...

When I was a young lad sometimes I'd wonder

What happened to time when it passed,

Then one day I found out that time just lands in prison,

And there it is held fast.

Perjury is a common law offence, whose maximum sentence is one of life imprisonment. It is difficult to envisage what circumstances, if any, might attract such a maximum.  The 1983 case of Gerald Hagan v. H.M. Advocate may be relevant in terms of coming to some computation. Seventeen year old Hagan gave perjured evidence in a rape case, in which he was a material witness. Lord Hunter had imposed a four year sentence on the youth, which was reduced to three years by the Court of Criminal Appeal in "reluctant" consideration of his youth and a background of threats and intimidation which he had been subjected to before bearing his false witness. Lord Justice-General Emslie's general remarks are of particular significance here. He said:

"The trial judge proceeded to sentence. He very properly took the view that the consideration of general deterrence in the public interest was of importance in dealing with the crime of perjury. It is a crime, as has been said before, which strikes at the very roots of the rule of law and the administration of justice."

Who knows what view Lord Bracadale will take tomorrow at Tommy Sheridan's sentencing hearing. That said, it probably isn't splendidly strategic to pre-empt the decision of the man who will pass sentence on your friend and ally with the language of "vindictiveness". There has been some suggestion that if you are sentenced to serve a jail term of more than a year, you are forever thereafter disqualified from holding parliamentary office. Electoral law isn't my thing, but I delved into it and can find no basis in law for this claim. Indeed, it seems most obviously to be a misreading of section two of the Representation of the People Act 1981, which reads, emphasis mine...

"A person found guilty of one or more offences (whether before or after the passing of this Act and whether in the United Kingdom or elsewhere), and sentenced or ordered to be imprisoned or detained indefinitely or for more than one year, shall be disqualified for membership of the House of Commons while detained anywhere in the British Islands or the Republic of Ireland in pursuance of the sentence or order or while unlawfully at large at a time when he would otherwise be so detained."

Reading the sections of the Scotland Act 1998 which deal with disqualifications from standing for Holyrood (sections 15 - 18) I can find nothing even remotely touching on a conviction for more than a year eternally consigning you to the category of unelectable. At least formally speaking. If any of my readers have a more marshalled command of electoral law and can direct me to some legal source that I've neglected on point, it would be appreciated*. That said, if generally reported predictions are correct, this will be little comfort to Mr Sheridan, who may have five years in which to echo the last refrain of MacColl's song...

Got time on my hands I've got time on my shoulders

Plenty of time on my mind.

There's no summer or winter when once you land inside here,

Just that old prison grind.

UPDATE

*I've consulted a soul much more learned that myself in matters legal and electoral. He has confirmed that the foregoing is an accurate interpretation of the Representation of the People Act of 1981. As a result, contrary to the view being expressed in some quarters, there seems to be no legal impediment that would prevent Tommy Sheridan from returning to parliament after he has served his time in prison (although bankruptcy may still do so, but is likely to be discharged if he is engulfed by it in the near future and his sentence is sufficiently long). Similarly, while other incapacities are set out in section 173 of the Representation of the People Act of 1983, these don't seem applicable to a conviction for perjury, concerned as they are with statutory offences of corrupt and illegal practices, as defined in the Act.

Quixotic insurers attempt to dodge democracy (and screw some victims while they're at it...)

Aviva, AXA, RSA, and Zurich’s attempts to stall the democratic will of the Scottish parliament are to be taken further, with confirmation appearing this afternoon that the Insurers are to try their luck with Scotland's higher judicial authorities, appeal ling against Lord Emslie’s judicial review decision on the validity of the Damages (Asbestos-related Conditions)(Scotland) Act, which I discussed extensively last week. The following news release appeared on ABI’s (the Association of British Insurers) website this afternoon. On this issue, the press seems to have got itself caught in an uninteresting version of the story, couched as it is in the apparently technical considerations of legal minutiae and wearying jurisprudential exchanges. The human story - and the political cheek - of what the insurers are up to here has largely passed the broader sheets by.

Not least, you might expect that the usual human rights haters to get exercised about the strategic use of that legal instrument by money-grubbing insurers, who must at least have a popularity rating approximating to those imprisoned for their criminal acts. Particularly when it is a rearguard action in the face of an affirmative campaign to the parliament, resulting in a direct change in the law. Apparently not. There is certainly a Quixotic aspect to challenging primary legislation in this way, much like the pro-fox hunters who did so, impugning the Protection of Wild Mammals (Scotland) Act 2002 on similar grounds. (Otherwise known as your human right to set your dogs on a fluffy fox. Obviously, I'm parsing somewhat...) What this are about is nothing less than attempting to use the courts to subvert the settled will of parliament, or alternatively, dragging out the fatal moment when that will will become enforceable against themselves.

Insurers lodge appeal against Scottish judgment on pleural plaques

Four major insurance companies have lodged an appeal against the recent judgment concerning The Damages (Asbestos-Related Conditions) (Scotland) Act 2009.

On 8 January, following a judicial review brought by several insurers, the Court of Session in Edinburgh ruled to maintain the recently passed Act to compensate people with pleural plaques, despite the medical evidence that the condition does not cause harm or lead to asbestos-related conditions such as mesothelioma.

Nick Starling, the ABI’s Director of General Insurance and Health said: “After careful consideration and legal advice, insurers consider that there are good grounds for this appeal. Insurers have not taken this decision lightly, and it reflects their strong view that The Damages Act is fundamentally flawed as it ignores overwhelming medical evidence that plaques are symptomless, and the well-established legal principle that compensation is payable only when there are physical symptoms”.

The ABI reiterated that the appeal in no way affects insurers continued commitment to pay compensation to people with asbestos-related diseases, such as mesothelioma, which impact on their health.

I shall keep you informed about any further developments as they unfold, no doubt at law's traditional, stately pace.

Asbestos update...

Further to my post yesterday, anticipating Lord Emslie’s decision on the legality of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, the judgement was handed down today. The full judicial pronouncement is now available here. As expected, the Scots judge rejected the large insurance companies’ submissions that the 2009 Act was illegal. Attending a little more closely to the arguments presented by the insurers, idioms involving barrels and scraping them leap to mind. However vinegary these legal lees might seem, there remains the possibility of an appeal. The BBC quotes the darkly suggestive Nick Starling of the Association of British Insurers, who predictably claims that “insurers will now be considering carefully this judgment, and are seriously looking at the grounds for an appeal against it. This is not the end of the road”. Although this may be a heroic sign-off in the anticipation of a humbling climb-down – a fist shaken at the mirthless and unremarking heavens, a broken man’s only dignity – I doubt it.

Notionally, however, the hundreds of litigants waiting at the Court of Session's doors can now anticipate the rusty cogs of justice within to start grinding - in their favour. Drawing his remarks to their conclusion, Lord Emslie remarked that “There is clearly room for differences of opinion as to whether the Parliament was right to legislate in the way it did, and it remains to be seen whether the 2009 Act will prove to have adverse legal or political consequences in years to come.” My point primary point was neatly summarised in paragraph 158 of the judgement, and was submitted to the court by Aidan O’Neill QC, who represented seven individuals “diagnosed with pleural plaques who seek, or at least intend to seek, damages on that account from their former employers”, who responded to the insurers’ case [Para 1]. O’Neill said: “Opponents who failed in the political arena have no general right to pursue their grievances in court. The rule of law must not be confused with rule by lawyers.” [Para 158]

Quite right, too.

On damages for asbestos-related conditions...

The Damages (Asbestos-related Conditions) (Scotland) Act 2009 was passed by Holyrood in the March of last year, only the Tories opposing its terms. The Act reverses the 2007 judgement of the House of Lords (as was, now the UK Supreme Court) in the Johnston case. Overruling the existing law, the Court determined that as distinct from cancerous mesothelioma (left), pleural plaques did not represent a disease, and as such, those whose lung tissue was scarred as a result of asbestos exposure could not recover compensation. It is my understanding that in many cases, these plaques are asymptomatic. In other cases, they are the precursor to future ill-health.

Despite vigorous opposition from self-interested insurers and their purchased lawmen and special-pleaders, the Scottish parliament finally determined to reverse this position. The 2009 Act provides that asbestos-related plural plaques, pleural-thickening and asbestosis are personal injuries which are not negligible and are actionable harms. Section 4 makes this judgement retrospective. Thus, a pursuer ‘caught’ in the common law position articulated by the House of Lords acquires a retrospective right to claim damages once the Act comes into legal force. This happened on the 17th June 2009.

In response, various big insurers have laid out some of their lucre and clubbed together to challenge the validity of the Act in judicial review. Or more precisely, the insurers are seeking a way to weasel out of compensating affected persons using any means possible. Having failed to convince parliament, they've traipsed up the Royal Mile to the considerably older wooden-beamed confines of Parliament House - and the Scots Courts. Tomorrow (Friday 8^th January), Lord Emslie is due to deliver his opinion on the insurers’ legal arguments. It should become available here some time tomorrow. The case is hugely significant The insurers' position relies to a significant extent on the now-familiar strictures of the Scotland Act, and the argument that the Damages (Asbestos-related Conditions) (Scotland) Act 2009 is ultra-vires. The first blast of their particular legal trumpet came with a petition to Lord Glennie, seeking an interim interdict to prevent the Act being brought into force, based on Article 6 of the European Convention on Human Rights (fair trial) and Article 1 of its First Protocol (protection of property). In April, Glennie refused that application, in the course of his decision indicating that more than 600 cases already awaited the Act coming into force in the Court of Session. These cases are currently ‘sisted’, or paused, until Lord Emslie’s decision is delivered tomorrow. Via Hector MacQueen’s Scots Law News, I gather 400 more cases have been intimated by not embarked upon. Many more may have accumulated in the passage of time.

Its hard to feel any sympathy for the grubby profiteering motives of the insurers and their diligent legal servitors. Corporations – legal persons – arguing the human rights of a case is often a shifty, strategic, expedient exercise. Rhetorically problematic, certainly. If they are to win, however, that is precisely what Axa General Insurance et al. must do. Section 29(2)(d) of the Scotland Act provides that an Act of the Scottish Parliament isn’t law if it is incompatible with Convention Rights. The insurers can’t be optimistic about their chances. Lord Glennie has already suggested that “on the question whether the interference with their rights under Article 6 and Article 1 of the First Protocol is justified in the public or general interest, I do not regard that prima facie case as a particularly strong one”. Lets hope he is right and the 1000 or more Scots awaiting compensation can finally push their cases through the court and receive their due, while the insurers' delaying tactics coming to a deserved nought. Assuming, of course, that they don't dip into their purses and appeal and appeal and appeal in the traditional way - amounting to a self-serving, democracy-defying use of their not inconsiderable wealth to effect yet another unjust abuse of process.