Tommy Sheridan fails in legal challenge for review of perjury conviction

A judge in the Court of Session said she was unable to identify any basis on which it could be said that the respondents erred in law in declining to refer the petitioner’s case.

Lady Carmichael heard that the petitioner, a former MSP and leader of the Scottish Socialist Party (SSP), was seeking judicial review of the decision of the respondents to decline to refer his conviction in December 2013 for the crime of perjury, which arose from evidence he gave in his £200,000 defamation action against News Group Newspapers (NGN) over articles published by the News of the World.

‘Conspiracy’

The court was told that the petitioner’s position at trial had been that all the Crown witnesses, whether they were witnesses who were SSP members, employees of NGN, or persons with whom he was alleged to have had sexual relations, were all in a single camp, directly and irreconcilably opposed to him and to witnesses who gave evidence in support of his position.

In the course of the criminal proceedings the petitioner sought recovery of certain documents from the Crown, NGN and the Metropolitan Police Service by means of commission and diligence, in order to show that there was a “conspiracy” against him.

It was alleged that NGN had “extensive contact with Crown witnesses”, including the “payment of monies or offers of payment; or the provision or offers of the provision of travel and accommodation to Crown witnesses”.

Furthermore, it was said that there were grounds to suspect that the activities of NGN in relation to the matters giving rise to the civil jury trial, the trial itself, their appeal, and the prosecution may have extended to an interest in “covert and unlawful surveillance” of the petitioner.

Following his conviction, in June 2017 the petitioner applied to the SCCRC for a review, claiming that certain documents were not produced which ought to have been, and that redactions were made which ought not to have been, but in March the following year the respondents declined to refer the case.

The commission issued a statement of reasons (SOR) to the effect that it did not consider that the absence of the fresh evidence may have resulted in a miscarriage of justice, and following further submissions the respondents issued a supplementary statement of reasons (SSOR).

Judicial review

In the application for judicial review, the respondents were said to have “erred” in their approach to exercising their own statutory powers of recovery by failing to require the production of the documents after the petitioner made an application to them.

It was submitted that the respondents erred in refusing the application for review because the material, had it been recovered, demonstrated that there was no witness untainted by the conspiracy and/or because additional evidence demonstrating the existence of a conspiracy would have been bound to strengthen the defence case and increase the likelihood of acquittal.

The petitioner complained that the respondents “closed their minds” to the possibility that that documents which ought to have been recovered under the petition for commission and diligence, and documents which the petitioner requested that the respondents obtain, could assist him.

It was argued that the respondents erred in their approach to the first question set out in the case of McInnes v HM Advocate 2008 SCCR 869, namely whether the material withheld from the defence was material which ought to have been disclosed.

Having been presented with material by the petitioner, the respondents then erred in addressing the second question in McInnes, namely whether taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict.

No error of law

Refusing the petition, the judge held that no error of law had been demonstrated.

In a written opinion, Lady Carmichael said: “The grounds upon which the respondents may refer a case to the High Court are that they believe that a miscarriage of justice may have occurred; and that it is in the interests of justice that a reference should be made: section 194C of the Criminal Procedure (Scotland) Act 1995. In this case the respondents concluded that they did not believe that a miscarriage of justice may have occurred, and so declined to refer the case to the High Court.

“The task of forming a view, or making of a judgment, as to whether a miscarriage of justice may have occurred is one for the respondents. It has been entrusted to them by Parliament. Consistent with the normal principles of judicial review, therefore, it is not for the court to substitute its own view or judgment. The court’s task is to assess whether the petitioner has been able to establish that the respondents acted unlawfully in reaching their conclusion.

“I accept that it is primarily for the respondents, as a public body with finite resources, to determine the degree of investigation to commit to a particular application…I can see no basis for saying that the respondents required to exercise their statutory powers to request significant volumes of material with a view to discovering what, if any of it, ought to have been produced earlier.

“Even if, contrary to the view I have expressed, the respondents ought to have assisted with the recovery of material, and unlawfully failed to do so, the petitioner has now obtained the material. It does not seem to me to assist him in impugning the decisions of the respondent to argue that the material should have been obtained earlier. It is for him to use the material that he has recovered in formulating grounds of appeal or in supporting his existing grounds of appeal in a focused manner.”

She added: “It is plain from the submissions made in the course of these proceedings that the petitioner disagrees with the respondents’ conclusions. The petitioner has not, however, demonstrated that those conclusions were ones which the respondents were not entitled to come to, and for that reason, his challenge to the decisions expressed in the SOR and SSOR fail.”