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Cite as: 2018 GWD 27-337, [2018] ScotCS CSOH_69, [2018] CSOH 69, 2018 SCCR 202

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OUTER HOUSE, COURT OF SESSION

[2018] CSOH 69

P831/16

OPINION OF LADY CARMICHAEL

In the Petition of

THOMAS SHERIDAN

against

SCOTTISH CRIMINAL CASES REVIEW COMMISSION

Petitioner

Respondent

Petitioner: Dangerfield, Solicitor Advocate; Archer Coyle

Respondent: Moynihan QC; Scottish Criminal Cases Review Commission

21 June 2018

Introduction

[1] The petitioner seeks judicial review of a decision of the respondents to decline to

refer his conviction for the crime of perjury to the High Court of Justiciary. The allegation of

perjury, in respect of which the petitioner was convicted on 23 December 2010, arose from

evidence he gave in civil proceedings which he brought against News Group Newspapers

Ltd (“NGN”). The action was for defamation, and the evidence was given at a civil jury

trial. The petitioner was formerly an MSP and the leader of the Scottish Socialist Party

(“SSP”).

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[2] The respondents issued a decision on 31 March 2015, with a statement of reasons

(“SOR”); and following further submissions a further decision on 27 May 2016 with a

supplementary statement of reasons (“SSOR”). The respondents made a further decision, in

relation to a discrete issue, on 1 June 2017. In relation to that discrete issue it supersedes the

earlier decisions, and I deal with it separately.

Background

[3] The background to and history of the civil proceedings and of the ensuing criminal

proceedings is narrated at paragraphs 1-22 of the Opinion of an Extra Division in Sheridan v

News Group Newspapers Ltd 2017 SC 63. I do not repeat that narrative in full here, although I

borrow from it. For the purposes of the present proceedings it is sufficient to record certain

aspects of that history only. The issue for the jury was:

“Whether the statements in the articles published by [NGN] in [various editions of

the ‘News of the World’ (‘NOTW’)] falsely and calumniously said that the pursuer

committed adultery (with Fiona McGuire, [AK] and other unnamed individuals);

that he was a ‘swinger’ and that he participated in orgies; and while he claimed to be

teetotal drank champagne; meaning thereby that he was a hypocrite and an abuser

of his position as a party leader to the loss, injury and damage of the pursuer.”

[4] NGN pled that the articles were true or at least substantially true. They were

ordained to lead, and led evidence from Fiona McGuire, AK, and another woman, KT, who

said that they had had extra-marital sexual relations with the petitioner. The petitioner

denied those allegations. The pursuer succeeded in his action, and was awarded £200,000.

NGN enrolled a motion for a new trial. NGN paid George McNeilage, a friend of the

petitioner, £200,000 for a videotape (“the McNeilage tape”). Mr McNeilage claimed that it

was a record of the petitioner making admissions which contradicted the evidence he gave

during the jury trial.

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[5] After the civil trial, Barbara Scott, a member of the SSP, passed to the police

manuscript notes which she had taken at an emergency meeting of the Executive Committee

of the SSP on 9 November 2004. She had been taking the minutes of the meeting.

[6] Criminal proceedings for perjury against the petitioner, and his wife, Gail Sheridan,

who had also given evidence at the civil jury trial, followed. It was alleged that he had given

false evidence in the civil jury trial in that, amongst other things, he had falsely denied that:

 at an SSP executive committee meeting on 9 November 2004, he made admissions

about two visits to Cupid's Club;

 at the Moat House Hotel on 14 June 2002, he had sexual intercourse with a

woman, PQ, while in a bedroom with another man XY;

 between 1 January 1994 and 27 September 2002, he had a sexual relationship with

AK; and

 between 1 January 2000 and 31 December 2005, he had a sexual relationship with

KT (a party worker).

The indictment did not contain any allegation that he had lied in his denial of sexual

relations with Fiona McGuire.

[7] The petitioner was found guilty, by a majority, of the following offences:

“(2) on 21 July 2006 … you … being affirmed as a witness in a civil jury trial of an

action for defamation then proceeding there at your instance … did falsely depone

[denials of the matters specified in (A) to (C), (M) and (O) below] the truth being as

you well knew,

(A) that on 9 November 2004 at the Executive Committee meeting of the Scottish

Socialist Party held at 70 Stanley Street, Glasgow you did admit to attending said

Cupid's [Club] in Manchester on two occasions in 1996 and 2002 and that you had

visited said club with said [AK];

(B) that at said meeting it was stated by said Alan William McCombes and Keith

Robert Baldassara that they had previously raised the issue of you attending a sex

club in Manchester and that you had admitted to them that it was true;

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Manchester; …

(M) that on 26 September 2002 you did attend said Cupid's in Manchester with said

Andrew McFarlane, Gary Clark, [AK] and [KT] and that you had visited a club for

swingers; …

(O) that between 1 January 2000 and 31 December 2005, both dates inclusive, you did

have a sexual relationship with [KT], and that you had stayed overnight with her at

[an address in Dundee].”

[8] It was a feature of the petitioner’s defence in the criminal proceedings that he

contended that NGN had “driven” the criminal proceedings against him. In his address to

the jury, the petitioner said:

“The Crown is supposed to prosecute in the public interest. That’s what [the

advocate depute] said yesterday. You may very well ask yourselves whether this

prosecution was in the public interest, or was it in the interests of the News of the

World?

[The advocate depute] yesterday tried to detach the case from the News of the

World. He doesn’t represent the News of the World, he told you. He represents the

Crown. This case [the advocate depute] would have you believe, has got nothing to

do with the News of the World. He said the result of the civil jury trial has no

bearing on the case. I beg to differ, ladies and gentlemen. The News of the World

are at the very heart of this case, no matter how stridently the advocate depute tries

to deny it.

Think about this. It’s the News of the World video that the advocate depute relies

upon and plays to you yesterday in his summation. It’s the News of the World

photographs that the police and the advocate depute show to witnesses. It is the

News of the World who provide names of potential witnesses to the police during

their investigation. It’s the News of the World who actually pay, or offer to pay, at

least eight important witnesses in this case, according to the testimonies of both Bob

Bird and Douglas Wight …”

[9] For the purposes of the present petition, it is necessary to note that the Crown led

evidence from witnesses who worked for NGN, from witnesses who were members of the

SSP, and from witnesses with whom the petitioner was said to have had sexual relations or

who were said to have been present when he participated in sexual activity. A number of

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witnesses who were members of the SSP gave evidence about what had happened at the

emergency meeting of the Executive Committee of the SSP on 9 November 2004. That

included evidence about admissions that the petitioner had made at that meeting and on

earlier occasions which were mentioned at the meeting. The evidence at the trial is

summarised in the SOR, and the petitioner took no issue in the present proceedings with the

accuracy of that summary.

[10] The petitioner sought leave to appeal against his conviction, but that was refused at

first and second sifts.

[11] During the period after the trial the Crown disclosed documents to the petitioner’s

agent, which had been recovered in the course of police operations post-dating the trial in

connection with investigations into allegedly illegal activities by journalists. A helpful

summary appears in Lord Turnbull’s Opinion in Sheridan v NGN [2018] CSOH 20 at

paragraphs 9-12.

The application for commission and diligence

[12] In the course of the criminal proceedings, the petitioner sought recovery of certain

documents by means of commission and diligence. The havers were the Crown, NGN and

the Metropolitan Police Service. Lord Brailsford heard legal argument in relation to the

motion for commission and diligence on 2 and 3 March 2010, and his decision is recorded in

a minute dated 30 March 2010. He also provided a note. Following amendment of the

petition and specification of documents, Lord Brailsford granted the prayer of the petition,

in respect of certain calls. A commissioner and interim commissioner were appointed.

Some of the documents produced were redacted.

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[13] It is a feature of the petitioner’s submission in this application for judicial review that

documents were not produced which ought to have been, and that redactions were made

which ought not to have been. The respondents are said to have erred in their approach to

exercising their own statutory powers to recover documents after the petitioner made an

application to them. Mr Dangerfield’s submission was structured largely by reference to

documents which he said should have been recovered by reference to one or other of the

calls in the specification of documents. It is therefore necessary to provide some detail about

the application for commission and diligence.

[14] The petition seeking commission and diligence contained the following averments.

“Most of the Crown witnesses led and relied upon by the defenders at the civil jury

trial are crucial Crown witnesses in present criminal proceedings. The News of the

World’s or News Group Newspapers Ltd’s activity has extended to extensive contact

with Crown witnesses including the taking of statements and affidavits; the

payment of monies or offers of payment; payment or offers of payment of expenses

claims or the provision or offers of the provision of travel and accommodation to

Crown witnesses.”

…

Furthermore, there are grounds to suspect that the activities of the News of the

World or News Group Newspapers Ltd in relation to the matters giving rise to the

civil jury trial, the trial itself, their appeal, and this prosecution may have extended to

an interest in covert and unlawful surveillance of the accused including the placing

of a bugging device on his car and telephone interception. It is not known whether

such surveillance extended to Crown witnesses.” … During the Metropolitan

Police’s investigation into Mr Mulcaire’s surveillance activities, the petitioner’s name,

partial address, postcode, and a mobile telephone number were found on papers

recovered.”

[15] On 30 March 2010 Lord Brailsford granted commission and diligence in terms of

calls 1.3, 1.4, 1.5, 4, 6, 9.1 and 10 of the specification. These, broadly speaking, covered

(Call 1) documents showing offers or payments of expenses, monies, gifts, hospitality,

accommodation or travel by NGN to any Crown witness; (Call 4) documents showing the

examination, transfer, and payment of money or provision of other benefits in respect of the

McNeilage tape; (Call 6) documents tending to show surveillance of the petitioner

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(references to surveillance of witnesses having been deleted from the call); (Call 9) certain

documents relative to the involvement of named expert witnesses; and (Call 10) documents

relative to a police investigation into leaks to the press regarding the prosecution of the

petitioner.

[16] I was told that Call 2, which had related to provision of payments and other benefits

to Fiona McGuire, had been withdrawn by counsel in the course of the discussion before

Lord Brailsford. Various other calls had either been withdrawn or not granted. Part of

Mr Dangerfield’s submission was that they would have been renewed, or new calls

formulated, in the light of the information that would have been received had the terms of

the order for commission and diligence been complied with.

The petitioner’s application to the respondents

[17] On 10 June 2014 the petitioner applied to the respondents for a review of his

conviction for perjury. The form on which he made his application did not itself contain an

explanation as to why he believed he had suffered a miscarriage of justice, but referred to a

letter from his solicitors. It is a feature of this case that the basis of the application has been

the subject of considerable later, additional, correspondence. It was also, before the decision

of 31 March 2015, the subject of a meeting. In the SOR, at paragraph 34, the respondents

narrated the following history, with which no issue was taken in the proceedings before me:

“34. The applicant’s grounds of review were difficult to discern from his solicitor

Mr Gordon Dangerfield’s initial letter and from the two folders of papers and

documentation which accompanied the application, much of which related to the

civil trial. At the Commission’s request Mr Dangerfield provided a further letter

dated 3 July 2014 setting out his grounds of review. Thereafter one of the

Commission’s legal officers had a lengthy meeting with Mr Dangerfield in an effort

to clarify his submissions. Following up on that meeting the Commission’s legal

officer wrote to the applicant, with a copy to his solicitor by letter dated 11 July 2014

setting out the Commission’s understanding of his grounds of review. By letter

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dated 4 September 2014 Mr Dangerfield confirmed that those were the grounds of

review to which his submissions related. He informed the legal officer that he had

further submissions to make in relation to those grounds of review. By letters dated

15 October and 31 October 2014 he continued to correspond with the Commission

and to refer to his intention to provide further submissions following upon receipt by

him of further disclosure from the Crown. By letters dated 6 November and 20

November 2014 he provided further documentation, together with submissions as to

its relevance to the various grounds of review.”

The SOR makes reference also to two interviews with the petitioner, in the presence of his

solicitor, on 11 and 15 December 2014, directed to ascertaining the petitioner’s position in

relation to the evidence relied on by the Crown, and to clarification of the grounds of

review.

[18] The grounds of review identified in the respondents’ letter of 11 July 2014 were

these.

(1) Judicial error in excluding from evidence unredacted material obtained from the

means of a commission and diligence and redacted by the commissioner.

(2) Failure by the Crown to disclose the unredacted exculpatory evidence to the

defence and to use its own powers to obtain or examine the evidence on behalf of

the defence.

(3) Oppression and abuse of process in that

(a) Crown witnesses Bob Bird, Douglas Wight, Keith Baldassara, Andy Coulson

and others conspired to pervert the course of justice in the petitioner’s trial

and each committed perjury in furtherance of that conspiracy;

(b) NGN withheld evidence in their possession, deliberately and in contempt of

the order pronounced by Lord Brailsford;

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or wilfully failed to disclose or investigate the exculpatory evidence and

conspiracies just mentioned.

(4) As a result of the wrongful exclusion of evidence, failures to disclose and

oppression, evidence criminally or unfairly obtained was admitted in evidence

when it should have been excluded.

(5) Esto that evidence should not have been excluded, the jury should have been

directed further how to consider it.

(6) There was fresh evidence to show that the petitioner’s claims of conspiracies

involving the Scottish Socialist Party and NGN were accurate and truthful, in

particular those regarding the witnesses mentioned at (3) above.

[19] On 31 March 2015 the respondents refused to refer the case to the High Court, and

gave reasons for their decision. In connection with point (6) above, the respondents noted

that Mr Wight, Mr Coulson and Mr Bird faced charges relating to their having given

perjured evidence at the petitioner’s trial regarding their lack of knowledge of phone

hacking. Evidence had also come to light casting doubt on Mr Bird’s evidence about the

whereabouts of emails that would have supported phone hacking allegations. The

respondents accepted that there was a reasonable explanation as to why that evidence was

not heard in the original proceedings, as it arose out of investigations by the police in the

wake of the petitioner’s conviction. The respondents did not consider that the evidence was

likely to have had a material bearing on, or a material part to play, in the determination by

the jury of the critical issue in the trial namely whether the petitioner had committed perjury

in the civil trial: Al Megrahi v HM Advocate 2002 SCCR 509 at page 585. This had to be

considered in the context of the trial as a whole. The respondents must consider that the

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absence of the fresh evidence may have resulted in a miscarriage of justice: Fraser v HM

Advocate 2008 SCCR 407. It is not suggested in the present proceedings that the respondents

misdirected themselves as to the appropriate legal tests.

[20] The respondents noted that the Crown had not relied on the evidence of Mr Wight

(called by the Crown as a courtesy to the petitioner) or Mr Coulson (called as a defence

witness). It had relied on the evidence of Mr Bird as to the circumstances in which he had

received the McNeilage tape. Parts of paragraphs 98 and 99 of the SOR merit quotation, as

much of the submission in the present proceedings, although not expressly directed at the

reasoning here, was directed at undermining the conclusion.

“98. … The fact that evidence has come to light post trial that certain Crown and

defence witnesses may have committed perjury … has no bearing upon the central

question for the jury, namely whether the applicant committed perjury at his civil

trial in relation to (1) what he and others said at the SSP meeting of 9 November

2004, as spoken to by no fewer than 16 witnesses; (2) whether he had had a sexual

relationship with KT whose evidence was corroborated by that of Ruth Adamson.

Ralph Barnett and Charles McCarthy; and (3) whether he had attended Cupids’ with

AM, GC, AK and KT as spoken to by GC, AK, KT, and corroborated by TC, PT,

Charles McCarthy, James McVicar and Nicholas McKerrell. When seen in the

context of the trial as a whole the Commission does not consider that the absence of

the fresh evidence at trial may have led to a miscarriage of justice (Al Megrahi, Fraser)

99. The Commission has examined all of the materials submitted in support of the

submissions in relation to Mr Baldassara, the majority of which relate to the civil

trial. The Commission considers that they are collateral to the facts at issue in the

applicant’s criminal trial and would therefore have been inadmissible. In the

Commission’s view the applicant’s submission that it may be inferred from the

materials that Mr Baldassara was part of a conspiracy against the applicant and

committed perjury at the applicant’s criminal trial amounts to no more than

conjecture. Similarly the Commission considers that the applicant’s submission that

Mr McCombes and Mr Baldassara collaborated with the NOTW in order to bring

down the applicant is speculative. However, even if one assumes that these

submissions are correct, there remains a compelling body of evidence from witnesses

who had no connection with the NOTW and about whom there is no evidence of

participation in any conspiracy. Therefore, when seen in the context of the trial as a

whole, the Commission does not consider that the absence of any such evidence at

trial may have led to a miscarriage of justice.”

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[21] Much of Mr Dangerfield’s submission to me was directed at demonstrating that on

the basis of the information available to the respondents at latest by the time of the SSOR the

respondents had not been entitled to maintain the conclusions expressed in the foregoing

paragraphs, because the material 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.

[22] The petitioner submitted further information, and the respondents granted five

extensions of time for further submissions. The material submitted included an opinion and

a note from senior counsel.

[23] The petitioner’s agents obtained documentary material from COPFS during the

period after 31 March 2015. The respondents described in the SSOR at paragraphs 2 and 3

the material submitted in the following way.

“… Further representations were made in a piecemeal fashion, accompanied by

voluminous documentation obtained by Mr Dangerfield from Crown Office, and

culminating in a 51-page document entitled ‘Note of Further Submissions for SCCRC

on 23 December 2015’ accompanied by two lever arch files of documentation and a

Note from Mr Findlay QC. In the Note of Further Submissions Mr Dangerfield

apologised for the form of his submissions. In the main the ‘submissions’ consisted

of references to documents obtained from Crown Office interwoven into a narrative

by Mr Dangerfield in which he purported to draw inferences from the

documentation.

3. Having examined all of the representations and the materials submitted by Mr

Dangerfield the Commission considered that the further ‘submissions’ did not

provide the applicant’s responses to the matters addressed in the March 2015 [SOR].

Therefore the Commission decided to afford Mr Dangerfield one further opportunity

in which to formulate his further submissions and provide the Commission with a

more structured response to the statement of reasons.”

[24] There then follows a further narrative of correspondence between the respondents

and Mr Dangerfield, from which it appears that the respondents remained concerned about

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a lack of focus and structure in the submissions being made to them. That culminated in a

further request for time by Mr Dangerfield, including a reference to trying to secure further

disclosure from COPFS. The respondents indicated that the matter would be considered at a

meeting on 20 May. Mr Dangerfield asked them to postpone their decision. He submitted a

further letter, dated 26 May 2016.

[25] Paragraphs 8-18 of the SSOR set out the respondents’ consideration of the matters

raised and their conclusions.

“8. In the absence of properly formulated submissions from Mr Dangerfield, the

Commission has considered the contents of the Opinion and Note by Mr Findlay

Q.C., dated 21 May and 22 December 2015 respectively, copies of which are

appended hereto, together with the letter and email dated 26 May 2016. The

Commission understands the main thrust of Mr Findlay’s opinion to be as follows:

there is ample material now available, including material previously redacted from

the notebook of Glenn Mulcaire and fresh evidence about Fiona McGuire, to suggest

that the News of the World was involved in a criminal conspiracy directed against

the applicant and in an attempt to pervert the course of justice; far too much

important material was not placed before the jury resulting in an inequality of arms;

and it is inconceivable that the foregoing material would not have had a profound

impact on the jury’s assessment of the credibility and reliability of the Crown case

and, in particular, of Mr Robert Bird’s evidence about the McNeilage tape, given the

applicant’s defence that he was the victim of a conspiracy against him by various

members of the SSP and NGN Ltd. Mr Findlay referred to the additional material

ingathered by Mr Dangerfield which, in his opinion, disclosed a systematic course of

criminal conduct intended to pervert the course of justice. He opined that this

material was wholly relevant to the criminal trial and ought to have been placed

before the jury and not hidden by those with a motive to do so. He stated that he

suspects that there may be yet more material ‘lurking in the shadows’ and that it is

wholly in the interests of justice that this material is now examined by the

Commission.

9. In his email of 26 May 2016 Mr Findlay re-iterated his opinion that the

applicant has been the victim of the most appalling conspiracy to pervert the course

of justice; that no one can say for certain what the effect of this would have been on

the trial jury; but that no fair minded person could doubt that the material which has

now been disclosed ought to have been available to the defence and before the jury.

10. In his letter of 26 May Mr Dangerfield stated that following upon the

conclusion of the civil appeal hearing, he had consulted with Mr Findlay who

suggested that he remind the Commission ahead of its Board meeting on 27 May

2016 of the most salient features of the new evidence which, it is submitted, proves

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beyond any doubt that there was a conspiracy against the applicant which rendered

incredible and unreliable all of the evidence and witnesses emanating from NGN Ltd

and from his enemies in the Scottish Socialist Party, which is to say, effectively, all of

the Crown evidence in the case. It is submitted that had this evidence of a

conspiracy been before the jury it must have affected very significantly the jury’s

consideration of the applicant’s defence of conspiracy, and of the credibility and

reliability of all those who denied that conspiracy, perjuring themselves in the

process. Thereafter reference is made to new evidence relating to (1) Fiona McGuire,

(2) the late Paul McBride Q.C., and (3) the perversion of the course of justice and

contempt of court by NGN Ltd throughout the commission and diligence process in

the criminal trial whereby NGN Ltd withheld from the court evidence of various

matters including the evidence of payments and offers of payments to Crown

witnesses, the evidence of phone hacking and other crimes involving criminal data

access and surveillance, the evidence of contacts and leaks of information between

Operation Median and NGN Ltd, the use against the applicant of corrupt public

officials, including police officers and police conduits, and the evidence of the

deliberate altering of the ‘Sheridan costs list’ to delete the entry regarding the

sending of Ms McGuire to Dubai ‘for 10k’ before the document was submitted to the

Commissioner in July 2010.

11. The Commission notes that the additional material about Fiona McGuire to

which Mr Findlay and Mr Dangerfield referred was to the following effect: (1)

Ms McGuire, who was a crucial witness in the applicant’s civil action against NGN

Ltd, lied when she claimed to have engaged in sexual activities with the applicant;

(2) NGN Ltd was, or ought to have been, aware that she had lied; (3) the News of the

World spirited her away during the civil case to avoid her being recalled by the

applicant; and (4) Mr Bird, upon whose evidence in relation to the McNeilage tape

the Crown relied in the criminal trial, was involved in this attempt to pervert the

course of justice.

12. The Commission notes that while Ms McGuire was a witness in the

applicant’s civil action against NGN Ltd, she did not feature in the charges or in the

Crown list of witnesses in the applicant’s criminal trial. The Commission accepts

that the credibility and reliability of Mr Bird, upon whom the Crown relied, in

relation to the McNeilage videotape, may have been undermined to some extent in

that his denial that the News of the World carried out illegal activities could have

been negated. The Commission also accepts that additional evidence could have

provided some support for the applicant’s contention that the News of the World

were ‘out to get him’ before and after the civil trial. Nonetheless the Commission

does not consider that the additional evidence about Ms McGuire, as outlined at

paragraph 11 above, is likely to have had a material bearing on, or a material part to

play, in the determination by a reasonable jury properly directed of a critical issue at

trial, namely whether the applicant committed perjury at his civil trial in relation to

(1) what he and others said at the SSP meeting of 9 November 2004, (2) whether he

had had a sexual relationship with KT, and (3) whether he had attended Cupid’s

with AM, GC, AK and KT (Al Megrahi v HMA 2002 SCCR 509 at page 585). When

seen in the context of the trial as a whole the Commission does not consider that the

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absence of the fresh evidence at trial may have led to a miscarriage of justice (Al

Megrahi, Fraser v HMA 2008 SCCR 407).

13. As stated at paragraph 6 above, the Commission considers that the

allegations against the late Paul McBride Q.C. remain unsubstantiated.

14. Turning to the various materials which were, it is submitted, withheld from

the court in the commission and diligence process by NGN Ltd, the Commission

notes, for example, that there is no evidence that KT received any payment from

NGN Ltd. The advocate depute in his speech to the jury reminded the jury of KT’s

evidence to that effect and of the lack of any evidence to the contrary. The advocate

depute referred to the evidence of Mr Bird that he thought that there had been an

offer of payment to her whereas it was KT’s recollection that no such offer had been

made. In the advocate depute’s submission the important point was that she

received no money from the News of the World and that there was no argument

about that. Later on in his speech the advocate depute submitted that there was an

issue about payment to AK. He also submitted that it did not follow that because

someone was paid, they told lies.

15. As regards the undisclosed material about Ms McGuire and about NGN

illegal practices, the Commission remains of the view, for the reasons stated at

paragraph 68 of the March 2015 statement of reasons, that even if one assumes that

the foregoing information would have been obtained by the defence before trial had

the unredacted pages of Mulcaire’s notebooks been available to them and had full

disclosure been made by NGN Ltd to the Commissioner and the court, and that the

information would have been admitted in evidence, it cannot be said that there exists

any real possibility that the verdict would have been different. In reaching this view

the Commission had regard to the strength of the Crown case, as summarised at

paragraphs 12 to 25 of the March 2015 statement of reasons, with particular reference

to the evidence of the numerous Crown witnesses who had no connection to the

News of the World and to the reasons stated by the advocate depute in his speech to

the jury, as summarised at paragraph 73 of the March 2015 statement of reasons

(McInnes v HMA 2008 SCCR 869). Nor is the Commission persuaded that the

exclusion of the redacted portions of the pages from the Mulcaire’s notebook might

possibly have affected the jury’s verdict (Hogg v Clark (No.2) 1959 JC 7).

16. The Commission considers that the submissions about the phone hacking,

information leaks and corrupt public officials, although grand in scale, are unspecific

and, again, do not go to the heart of the matter – whether the applicant committed

perjury at the civil trial.

17. Taking into account all of the circumstances of the trial, the Commission does

not consider that there exists any real possibility that the verdict would have been

different if the undisclosed materials had been disclosed to the defence before the

trial and had been before the jury. Nor does the Commission consider that the

additional information is likely to have had a material bearing on, or a material part

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to play, in the determination by a reasonable jury properly directed of a critical issue

at trial, namely whether the applicant committed perjury at his civil trial.

18. Accordingly, nothing in the applicant’s further submissions leads the

Commission to believe that there may have been a miscarriage of justice in the

applicant’s case.”

Notes of argument and documents

[26] Before the hearing of this application, parties had produced notes of argument. The

note of argument for the petitioner dealt almost exclusively with contentions as to what

documents ought to have been recovered, whether in terms of the application for

commission and diligence or by the respondents using their statutory powers under

section 194I of the Criminal Procedure (Scotland) Act 1995. Although the note of argument

does draw attention to some particular documents, there is relatively little in the written

argument about why individual documents were said to be significant to the challenge

made to the respondents’ decisions.

[27] Most of the petitioner’s contentions about the significance of particular documents

became clear to me only during the oral submissions. On some occasions it was contended

that a document was significant because a link could be made between it and another

document. The potential significance of particular documents, particularly when taken to

together, was not always apparent to me on my unguided reading even of the marked

passages in the documents produced.

[28] This is a case in which I had an opportunity to read in advance the notes of argument

and to look at the highlighted portions of documents. It was an opportunity which

produced only a limited advantage in conducting the substantive hearing and producing

this opinion, because much of the detail of what the petitioner submitted orally was not

prefigured either in the petition or the note of arguments.

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[29] I was given the documents and authorities in a single pdf, which I found very

helpful. It was considerably easier to use the documents in this format than in what would

have been a very bulky paper bundle. The documents were listed in a schedule, in groups

by reference to particular calls of the specification which Lord Brailsford considered. In this

opinion I refer to the documents by the numbers under which they were grouped in the

schedule, and on occasion by their page number in the pdf. Where I use a pdf page number,

it appears in brackets.

Submissions for petitioner: SOR and SSOR

[30] Unusually, in the context of a petition for judicial review, the submissions made for

the petitioner made very little reference to the decisions made by the respondents and the

reasons given for those decisions. I heard quite a wide ranging address directed at two

principal areas. The first related to the respondents’ approach to recovery of documents

under the petition for commission and diligence; and the respondents’ failure to exercise

their own powers to require the production of documents. The second was that the

respondents erred in their approach to the material which had been recovered, and

presented to them as material which ought to have been recovered. Within that second

chapter was a distinct sub-chapter in relation to material regarding the alleged conduct of

Gail Sheridan’s lawyers, which I deal with as such. In the SOR and SSOR the respondents

treated those allegations as unsubstantiated. Further material, in the form of an opinion

from counsel, then was submitted in support of those allegations, and was the subject of a

further decision on 1 June 2017.

[31] The petitioner complains that the respondents, from the time of the SOR, closed their

minds to the possibility that that documents which ought to have been recovered under the

Page 17 ⇓

petition for commission and diligence, and documents which the petitioner requested that

the respondents obtain, could assist him. The expressions “disclosure” and “recovery” were

used interchangeably in the written and oral submissions for the petitioner. They are not

identical in meaning. Disclosure is usually employed as a term of art in relation to the

duties of the Crown to provide material to the defence. I use the expression “recovery” here.

The petitioner is referring to recovery by means of commission and diligence in the criminal

proceedings, and to what he says is a failure on the part of the respondents to exercise their

statutory powers to require the production of documents. Matters were complicated in that

after the trial material was disclosed by the Crown, but the submission was, as I understood

it, that the respondents should have addressed their minds to what should have been

recovered by means of petition and diligence.

[32] In developing his submission about the respondents’ failure to exercise their

statutory power to seek production of documents, Mr Dangerfield referred to particular

parts of his correspondence with them. He drew attention first to the respondents’ terms of

service, which included, at paragraph 7, the following:

“Submissions: We are an independent body. We do not take instructions from you.

It is not your role to direct the review of the case. We will decide how best to review

your case, taking into account the submissions you made in your application.”

He submitted that this indicated that the petitioner had no duty to raise with the

respondents the question of recovery of documents, although he had in fact done so. The

respondents could be expected to identify and pursue that line of inquiry themselves.

[33] His firm’s letter of 3 July 2014 sought to articulate the grounds of appeal. These

included ground 1, which was wrongful exclusion of material by the commissioner, and

Page 18 ⇓

ground 4, oppression and abuse of process in respect of the failure by NGN to produce

documents as they required to do in the commission and diligence process.

[34] In his firm’s letter dated 1 October 2014, he wrote:

“I understand that the disclosure process is now to be handled by the Appeals

section of COPFS as a result of the Commission having accepted my client’s

application for review and I am very much hoping that this will be a positive

development in speeding up that process and facilitating disclosure at last of the

hundreds of clearly relevant and exculpatory documents which have to this point

been withheld by COPFS without the slightest attempt at explanation, and despite

repeated requests for disclosure.”

[35] In a letter dated 15 October 2014 Mr Dangerfield wrote:

“All of the material I have produced to date, and all of the further material I shall

produce, is, in my submission, relevant and impactful as evidence that my client’s

principal ground of defence was true, and that the denial of it by these witnesses and

the Crown was false. That is to say, these various witnesses were indeed involved in

these various criminal conspiracies, but for which, and but for the denial of which by

them and by the Crown, my client would not have been convicted. Indeed, but for

the denial of them by the police and Crown, he would never have been charged or

indicted.

A good deal of this same material is also relevant and impactful as evidence which

was deliberately concealed by these conspiracies and/or wrongfully excluded

through failure to disclose by the Crown and/or through judicial error. This aspect

of my client’s application of itself, in my submission, constitutes sufficient grounds

for referral back to the court.

A good deal of this same material is also relevant and impactful as evidence that

much of the Crown evidence at my client’s trial was thoroughly tainted by

criminality.

…

I further intend, as you know, to make further submission and to produce further

materials just as soon as I can. Part of my difficulty in doing so results from

difficulties I am having in obtaining relevant information and disclosure from the

Crown but I can well understand why you do not wish to be troubled with the

ongoing details of this. I am nonetheless anxious that the Commission should make

all due progress with the very substantial, relevant and impactful material submitted

by me to date, as both my client and I are anxious that the present target date of

March 2015 for decision should, at the very least, be met.”

[36] I pause to note that none of these passages contains any request that the respondents

exercise their power to seek recovery of material. On the contrary, they seem to indicate that

Page 19 ⇓

Mr Dangerfield was continuing to seek further material, and that he did not expect the

respondents to concern themselves directly with this.

[37] Mr Dangerfield referred to a further letter, dated 11 March 2015, shortly before the

SOR. He submitted that he had “naively expected” that the respondents would themselves

seek to recover all the material that he had been trying to recover. He submitted that he had

become anxious about the fact that the respondents were moving towards a decision and

that “vast screeds” of documentation that should have been obtained had not been obtained.

He wrote, enclosing an email to COPFS and schedules of documents, which were marked

with Y beside documents the Crown regarded as exculpatory and N beside those not so

regarded.

“As you will see, these further documents seek further important disclosure from the

Crown in addition to that sought in the various documents enclosed and detailed on

the Schedules included in my letters to you …

For the avoidance of any doubt, I hereby formally request that the Scottish Criminal

Cases Review Commission seeks and obtains from the Crown all of the disclosure

which I have myself sought in all of these documents.

I appreciate that, in accordance with the Commission’s unfair process generally, it is

not your policy to tell me whether you will seek this disclosure or not, or to disclose

in turn anything which you do obtain to me.”

[38] Mr Dangerfield submitted that he had not realised until after receiving the SOR that

the respondents had not recovered any documents. By the time of the SOR, although

documents in the hands of the Crown had not been recovered it was clear that “the ground

of application had widened out exponentially”, and he was asking the respondents to

recognise that by obtaining the documents that ought to have been recovered in the

commission and diligence process. In particular, the respondents ought to have recovered

an item numbered 308 “Sheridan costs expenses file - folder marked July 2006 to date”,

which had been marked as non-exculpatory on the schedule already referred to. The

Page 20 ⇓

respondents had ignored the request, and closed their minds to the idea that in seeking to

recover documents the petitioner was engaged on anything other than a fishing expedition.

[39] A letter dated 29 July 2015 referred specifically to certain documents, in particular

one discussed more fully below indicating that NGN had made a tentative approach to KT.

That includes the following:

“It is a pity that the Crown chose to withhold this vital evidence from us for some

three years but now that we have it, we hope that the Commission will agree that we

have a duty to pursue further disclosure based on it with the utmost rigour.

…

We are aware that the Commission itself has powers in this regard which it has

chosen to date not to exercise. Any exercise of those powers now to help expedite

matters would of course be appreciated, as it would have been at any point in the

process to date.”

[40] Similarly, by letter dated 24 September 2015, he wrote:

“… disclosure in terms of the Crown schedules and our earlier requests nonetheless

remains very far from complete …

Again, we are at the mercy of COPFS in this regard, and again we would point out

that we sincerely believed when we made our client’s application to the Commission

in June 2014 that the Commission itself would be able to expedite this process of

Crown disclosure in the course of its own investigations. This has proved not to be

the case.”

[41] Further correspondence contains references in a similar vein. The greater part of the

correspondence post-dating the SOR consists of representations about the significance of

material the petitioner had obtained from the Crown. In oral submission, Mr Dangerfield

characterised his correspondence with the respondents as amounting to a request in the

following terms: “Please obtain this vast swathe of material that we know is there, which

you require to do in order to ascertain what ought to have been disclosed.”

[42] The first chapter of the petitioner’s submissions as to the relevant law was concerned

with propositions said to be derived from the cases of McLeod v HM Advocate (No 2) 1998

JC 67; McDonald v HM Advocate 2010 SC (PC) 1; and McInnes v HM Advocate 2010 SC

Page 21 ⇓

(UKSC) 28. The petitioner argued that the respondents erred in their approach to

considering what material ought to have been “disclosed”. I did not find the submissions on

this point easy to follow. The argument was this.

[43] The respondents ought to have addressed the “first question set out in McInnes”. By

this Mr Dangerfield meant the first question identified by Lord Hope at paragraph 19,

namely whether the material withheld from the defence was material which ought to have

been disclosed. The test was whether the material might have materially weakened the

Crown case or materially strengthened the case for the defence. He referred also to the very

similar formulation by Lord Rodger in McDonald at paragraph 50. Only after that question

had been answered could the second question, that identified by Lord Hope at paragraph 20

be considered. That is, whether taking all of the circumstances of the trial into account, there

was a real possibility that the jury would have arrived at a different verdict.

[44] He then went on to say, in apparent contradiction to the submission that the

respondents ought to have addressed “the first McInnes question”, that the respondents

should have addressed a different test, namely whether the documents sought would be

likely to be of material assistance to the proper preparation or presentation of the

petitioner’s defence: McLeod, paragraph 80.

[45] Having been presented with material by the petitioner, the respondents had 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. The respondents had worked on the basis that, in assessing

that question, “tainted” witnesses could be separated from “untainted” witnesses. They had

erred in doing so, because the petitioner had presented information that indicated that the

“conspiracy reached everywhere”.

Page 22 ⇓

[46] Mr Dangerfield referred also to Bannerman v Scott and others (1846) 9 D 163. It related

to an application for a new civil jury trial on the basis of res noviter veniens ad notitiam. The

new information was information which should have been produced in a diligence

preceding the trial, but was not. Mr Dangerfield laid particular emphasis on the following

passage in the opinion of the Lord President:

“Now, though I certainly thought, on the trial of this cause before me, that, upon the

evidence then adduced, the verdict in favour of the defenders was clearly well

founded; and that, if the motion for a new trial rested on that evidence alone, it must

have been refused; yet, as the case is now presented to us, I can see no legal grounds

for refusing to grant a new trial. To this conclusion I am indeed irresistibly led, from

considering how it was that the pursuer was deprived of the documents to which he

has now obtained access; for, without imputing an intentional withholding of the

various writings lately recovered, it is manifest that the persons in whose custody

they were, had made an imperfect examination, down to the latest period before the

trial, and certainly were not warranted in acting, however honestly it must be

presumed, upon an opinion that the documents were of little importance in the

cause.

I don't consider that it is at all necessary, under such circumstances, for the Court to

be fully convinced that this new written evidence will either, certainly or probably,

lead to a different verdict. That it bears upon the question at issue is undeniable, and

as to what effect is due to it, it is not at present necessary to decide; nor can the

Court act upon the impression that, notwithstanding it, a similar verdict may again

follow. For, besides its own weight, it is obvious, that had this been produced before

the trial, it might have led the pursuer to call additional parole evidence, to support

or explain the new documents; and as he has been deprived of that opportunity

from no fault or negligence of himself or his agent, I am of opinion that, without at

all trenching upon the principles that have guided us, and, I think, should still guide

us, in granting or refusing motions for new trials, we are bound in this case to make

the rule for a new trial absolute.”

[47] In reliance on that passage, and passages in the opinions of Lord Mackenzie and

Lord Jeffrey, Mr Dangerfield submitted that it did not matter how strong the evidence

previously led might appear to be; if an order for commission and diligence were not

complied with, and information subsequently emerged which ought to have been produced,

the court would be likely to favour a motion for a new trial. Further, it was sufficient that

there be only a possibility of a different verdict in the new trial.

Page 23 ⇓

[48] Although the point was not developed in much detail in oral submission, the

petitioner’s note of arguments referred to the decision of the Inner House in Sheridan v News

Group Newspapers. His contention was that the Inner House had concluded that had they

been in a position to treat the petitioner’s arguments about the material presented to the

court (similar to the material presented to the respondents and in this petition) as

established fact, they would have had to give serious thought to the question of whether

NGN should be allowed to proceed further.

[49] 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. The

petitioner’s case had been that there was a conspiracy against him. That had been a proper

line of defence. Mr Dangerfield referred to a note produced by Lord Bracadale regarding a

line of evidence in the course of the trial, which reflected Lord Bracadale’s view that it was

relevant for the petitioner to explore with Mr Bird, in cross-examination, the extent to which

NOTW might have employed measures such as payments to persons for stories; hacking

telephones; use of clandestine listening devices; the use of private investigators; and the

use of sources within the police force. The documents the petitioner had obtained since the

SOR and which had been presented to the respondents strengthened his defence in that they

showed how far-reaching that conspiracy was. The material disclosed contempt of court on

the part of NGN. Mr Dangerfield accepted that in the course of a criminal trial it would be

open to the jury to choose to accept the evidence of some witnesses but not of others. He

maintained, however, that the material he had produced would, if put before the jury, have

weakened the notion that any witnesses were untainted by the conspiracy. The verdict had

Page 24 ⇓

been guilty by a majority, and the additional material would have had the potential to leave

or raise a reasonable doubt in the mind of further members of the jury.

[50] Mr Dangerfield submitted that the primary duty on the respondents was to seek

recovery, using their statutory powers, of any document covered by the calls granted by

Lord Brailsford and which had not actually been produced or disclosed. The respondents

had not attempted to undertake that task. He referred to a number of documents twice -

first in the context of his submission that the respondents ought to have sought to recover

them, and that the documents, once available, would have opened up other lines of inquiry;

and second in the context of his submission that the respondents had erred, having been

presented with the material, in declining to refer the petitioner’s case to the High Court. As

he acknowledged, there was some overlap in the submissions that he made about the

documents in each of these chapters of submission. In summarising his submissions about

the documents, in order to try to avoid unnecessary repetition, I have simply recorded the

documents he referred to and what he said both about recovery of the documents and their

significance under both chapters, without specifying which submission was made under

reference to which chapter.

[51] After the respondents issued the SOR, Mr Dangerfield received disclosure of certain

material on a pendrive, under cover of a letter dated 18 May 2015 from the Crown. These

were produced as number 13 on the petitioner’s schedule of documents.

 He drew attention to a memo from Stuart Kuttner to Mr Bird (216), which

referred to money spent on “Doug Wight babysitting [Fiona McGuire] for some

weeks before and during [the civil trial].” It continues, “We then had to pay for

the cost of a mystery benefactor taking her to Dubai when it was feared she

might be recalled to the stand.” He said that it should have been recovered in the

Page 25 ⇓

commission and diligence process. He said that had it been recovered, it would

have been inconceivable that the commissioner would have redacted the portion

about Fiona McGuire, as it was evidently relevant to the defence that NGN was

seeking to pervert the course of justice. Issues like that had never been

considered, and the respondents had never directed themselves to the “first

McInnes question”. Mr Bird was the editor of the Scottish edition of NOTW.

 Another item disclosed was (221), which was a list apparently of expenses

incurred, totalling over £51,000, including payments to Douglas Wight,

Graham McKendry and Euan McColm, who were all Crown witnesses. The

respondents had made no attempt to get it, although it had been on the

“schedule”. Mr McColm was the Scottish political editor of NOTW.

 A further memo from Mr Bird (224) referred first to “two hefty Sheridan related

bills”. The first was said to relate to “an emergency operation to get

Fiona McGuire out of the country when it was stated in court that [the petitioner]

might be recalling her to the witness box.” The second related to

Andy’s (Coulson) awareness of “voice analysis” in the context of an “ongoing

new story”. Mr Dangerfield said this related to analysis of the tape provided by

Mr McNeilage, and would have been covered by calls 4 and 9. It should have

been sought and recovered by the respondents before issuing the SOR. Attached

to it were hotel and travel bills bearing to be connected with Fiona McGuire.

[52] Under cover of a letter dated 3 September 2015 (242-245) the Crown disclosed an

item described as “Blue Manila Folder” marked “Sheridan Costs/File (July 2005 to date)”

(“the Sheridan costs file”). In the present process it was number 14 on the petitioner’s

Page 26 ⇓

schedule. It contained 78 pages of material, of which Mr Dangerfield said almost all was

“disclosable”. He drew attention particularly to the following.

 An email dated 28 September 2006 (253) from the treasury manager of News

International Limited refers to a payment of £200,000. It does not refer to

Mr McNeilage, but Mr Dangerfield submitted that it related to payment for the

video tape provided by him.

 Emails dated 5 March 2008 between Stuart Kuttner and Mr Bird referred to

seeking to secure a “Sheridan fund in the coming budget”, to

“George McNeilage’s £200k” and to a “£200,000 video”. It should have been

recovered under calls 1 and 4 in the commission and diligence process.

 The file (262-298) included various running totals of disbursements up to

December 2006. They indicated what had been paid, to whom, and, by virtue of

the running totals at different dates, they also provided some indication as to

when payments had been made.

 An email from Mr Bird’s personal assistant, dated 12 August 2006, (265) referred

to a cash payment to a tipster “for next week” - a reference that Mr Dangerfield

said was to the following week’s edition of the News of the World. He said that

it was a payment to a SSP witness, and to someone that the respondents regarded

as “untainted” by NGN’s conduct. He sought to link this to an article published

on 20 August 2006 (595-596). The article referred to a letter sent by

Charles McCarthy, an SSP activist, to 300 party members. It related that a copy of

the letter was given to the NoW, but not by whom. It undermined the notion that

SSP witnesses were untainted by the conspiracy at the hands of NGN.

Page 27 ⇓

 An email dated 20 October 2006 from Euan McColm (302) sought to justify his

telephone bill by reference to a high volume of calls made during and after the

civil trial. The explanation was, “Many numbers appear frequently because I was

making several calls a day to a number of individuals”. According to

Mr Dangerfield’s submission, Mr McColm was “the NGN conduit to the SSP

witnesses who were collaborating with NGN and who were denying on oath that

they were doing so.” If the petitioner had had this email before his trial he would

have sought by a further application for commission and diligence to recover

itemised billing for Mr McColm’s telephone with a view to discovering whether

he had been in contact with the SSP witnesses, of whom the petitioner knew the

telephone numbers. This item appears again in the documents in number 22.

 Emails in number 22 showed that Mr McColm was the conduit for information

from the SSP (469 and following). They included an email apparently from an

individual, who was the daughter of a Crown witness. It was sent to

Mr McColm. It was passing on to Mr McColm gossip or discussion from what

was supposedly a secure SSP website.

[53] If these items had been recovered in July 2010, there would have been a real

possibility of a different verdict. It would have opened up additional lines of inquiry to

counsel then instructed. She could have made further applications for commission and

diligence. A number of the items referred to Fiona McGuire. Although the call relating to

payments to her had not been granted, it was inconceivable that the commissioner would

have redacted references to her, given that the defence was that NGN were seeking to

pervert the course of justice.

Page 28 ⇓

[54] Mr Dangerfield went on to make submissions about other documents produced by

the petitioner in the present process (numbers 15 onwards in his schedule). The respondents

should have asked themselves what should have been recovered in the commission and

diligence process, had the order made been complied with. The respondents should have

recognised that, in the period between March 2010 and the trial, the defence would have

regarded recovery of documents as an ongoing process, and would have considered

renewing calls not moved or refused. He said that this would have resulted in further

recovery being made in terms of calls 2 and 5, and a wider call 6, framed so as to include

documents showing surveillance of Crown witnesses.

[55] Under reference to number 15, which were said to be documents that ought to have

been produced in response to call 1, Mr Dangerfield drew attention particularly to the

following.

 An email dated 19 July 2006 from Mr Bird to Andy Coulson (321-2), setting out a

plan for items to be published after the civil jury trial. It includes a reference

to KT:

“[KT]. We have made a tentative approach to her but very very wary at the

mo of going too far with her. She was delivered to us by the SSP and if we

start throwing money at her at this stage it could rebound on us with other

SSP witnesses. It was made clear in court that she wasn’t giving evidence for

money if it became known before case was over that we had offered her a

sum or she had accepted it, I don’t think it would look good. But she is

undoubtedly the best looking of his women and Im sure we can get

something new on her/with her eventually.”

The same email, this time bearing to be sent to other recipients, and dated 21 July

appeared (323) with handwritten annotations, including what might be a

reference to £5,000 with a question mark beside the reference to KT. The

document also appeared in number 22 (465). This was significant because it was

Page 29 ⇓

dated one week before Mr Bird gave evidence in the civil trial, in the course of

which he gave evidence that the News of the World had not offered any money

to KT to give “her account about” the petitioner. An extract of Mr Bird’s

evidence given on 28 July 2006 appeared at (592-3). At the criminal trial Mr Bird

gave evidence that KT had been offered money and said by way of explanation

that he had been unaware when giving evidence in the civil trial that she had

been offered money. It was not evidence that KT was paid, but it did indicate

that Mr Bird had been untruthful. The material had not been available to the

petitioner when he was cross-examining KT and Mr Bird in the criminal trial. It

would have been further evidence of a “conspiracy in which no witness was

untouched.” Mr Coulson was at the time the editor of the NOTW.

 The same document referred to “the Moat House ladies” and to the “SSP”. In

particular there was an arrow between handwritten references to EM and

Baldassara possibly indicating that some task relative to the witness

Keith Baldassara was allocated to Mr McColm. Mr Dangerfield submitted that

there was “inferential evidence” that Mr Baldassara “came on board” with NGN.

He suggested that with the intervention of the respondents searches could have

been made of NGN’s electronics for the names of particular SSP members, or the

name of one with in ten words of the name of another, between particular dates,

with a view to discovering evidence that SSP witnesses conspired with NGN.

 An entry on a table of payments had been deleted before submission to the

commissioner. The entry read “Cost of sending Fiona McGuire away £10,000”

(339). This was a reference to costs incurred in removing Ms McGuire from the

jurisdiction during the course of the civil jury trial because NGN were concerned

Page 30 ⇓

that the petitioner might re-call her as a witness. It was a clear indication that

NGN were prepared to act in contempt of court. NGN were prepared to go to

considerable, and unlawful, lengths to advance their own interests, and that

would permit an inference that the “taint” spread to all the Crown witnesses.

[56] The documents produced at number 16 related to phone hacking. The background

was that the petitioner produced more than a thousand pages of his phone records in

June 2006, in the context of the civil action. At the time the petitioner was unaware of the

phone hacking activities undertaken by some journalists.

 A series of emails starting with one dated 21 June 2006 from Mr Bird (346) related

to a request from Mr Bird that a number called by the petitioner be investigated.

The correspondence included a reference to “satellite jiggery pokery”

(ie triangulation) to try to find out where the call had been made from. They

included references to the names of persons now known to be involved in phone

hacking, and they disclosed that names had been attributed to various numbers.

Number 16 also included documents recovered not through COPFS, but by the

petitioner himself in a civil action in England against NGN for phone hacking.

They disclosed repeated calls made to the petitioner’s number from a “hub

number” through which journalists’ calls were routed. The pattern of calls was

consistent with a phone hacking practice called “double tapping” which allows a

caller to listen to the target’s voicemail messages. Mr Dangerfield did not submit

that any particular information was obtained from the petitioner’s voicemail, but

rather asked, “Who knows what information NGN were able to obtain from it?”

 Number 16 included pages from the notebook of Glen Mulcaire, who was found

guilty in 2007 of illegally intercepting communications. Information in them had

Page 31 ⇓

been redacted by the Metropolitan Police Service. Although the commissioner

had also been provided with an unredacted copy, he had adopted the redactions

made by the haver. The redacted portions related to details of persons with some

connection to the petitioner and details of his mobile phone account number.

Mr Bird’s evidence would have been undermined by evidence that supported the

contention that NGN had engaged in phone hacking.

 A series of emails mentioning a woman called Laura began immediately after the

end of the civil trial (388). This was said to be a reference to a Ms Smith who was

on the list of crown witnesses but not called in the criminal trial.

 The same series of emails (394) included a reference to “good news about

Barbara Scott”. This was a reference to a meeting between Ms Scott and other

SSP members in which a decision had been taken that she should provide her

notes of the meeting of 9 November 2004 to the police. The matter was a

sensitive one within the SSP, yet NGN knew about it. The respondents should

have appreciated the significance of this reference because of information in

material disclosed by the Crown before the criminal trial.

[57] The documents produced at number 17 (410-413) of the schedule ought to have been

produced under call 10. They included a staff expense form bearing to be signed by Mr Bird

relating to a claim for expenses incurred on 13 October 2006 for having “lunch with two

Edinburgh detectives re Sheridan case”. The petitioner’s case was that he was unfairly

targeted and that there was a close and improper relationship between the police and NGN.

This was evidence of the editor of the NOTW taking detectives to lunch. Call 5 of the

specification would have been “opened up” to cover every contact between the police and

NGN that was not properly in the course of the police investigation.

Page 32 ⇓

[58] Mr Dangerfield referred more briefly to numbers 18-33 in the schedule of documents

by reference to his note of arguments. The respondents ought to have sought to recover the

documents now produced. Some were obviously significant, whereas others raised more

difficult questions. The respondents never put themselves in a position to address the

significance of the documents because they did not recover them. I detail below the matters

to which he referred further in oral submission.

[59] In relation to number 19 Mr Dangerfield referred to the following:

 There was correspondence from September and October 2006 between NGN’s

solicitors and the police seeking to arrange a meeting between Mr Bird and police

officers. An email dated 11 October 2006 (454) directed the police to a potential

witness connected to the SSP, who ultimately became a Crown witness. Another

email (455) dated 17 November 2006 from Mr Bird related his impression that

police officers dealing with the matter were enthusiastic about the investigation.

An email (456) dated 20 September 2007 appeared to be a complaint by Mr Bird

to the Senior Investigating Officer about a request that NGN refrain from

precognosing witnesses because of the potential to interfere with the criminal

investigation. Mr Dangerfield identified further emails which he said indicated

that Mr Bird was trying to conceal information about Ms McGuire’s trip to Dubai.

 Mr Dangerfield drew attention also to 19.12 (462). He said it was a handwritten

note indicating that Mr Bird’s personal assistant had been asked to look out email

addresses for contact with the police. He inferred that the note had been made

in 2010, possibly with a view to having to respond to call 5 of the specification, a

call which was not in the event granted. It showed how easy it would be to make

a search of NGN’s email records for contact between NGN and the police.

Page 33 ⇓

[60] Mr Dangerfield made particular reference to a number of documents in number 22,

over and above those already mentioned as relating to references in other documents.

 There was a reference (474) to a statement made by Frances Curran MSP, and

included an email from Mr Coulson to Mr Bird reading, “What are chances of

someone from party (“her”) going into police station today”. It “tied in" with the

information about Barbara Scott.

 There was an email dated 5 August 2006 (477) from a Conservative MSP, to a

recipient whose name had been redacted, including a draft letter to COPFS

asking for an investigation into “apparent mass perjury” in the civil trial. This

was significant because the respondents seemed to have accepted that the

investigation was begun because of a disinterested complaint from the MSP, and

a complaint from another individual. The email indicated that the complaint was

not made disinterestedly, but in cooperation with NGN.

[61] In relation to numbers 30 and 34, Mr Dangerfield said the following. Mr Bird had

sent various documents to the commissioner under cover of a letter dated 9 July 2010 (333).

He had made passing reference to a payment to a Mr Massey, who was not a Crown

witness. By letter dated 28 August 2017 (580) Mr Dangerfield asked COPFS to disclose items

related to Mr Massey. Mr Massey is said to have been the source of a photograph of TC and

LC, persons said to have attended Cupid’s nightclub, and Crown witnesses. He is said to

have supplied the photograph to a senior crime reporter. He is said to have approached TC

and LC himself. According to Mr Dangerfield NGN wanted KT and AK to identify TC and

LC as having attended Cupid’s. Mr Bird had not disclosed the significance of the payment

to Mr Massey. Emails dated 31 December 2010 (517-8) referring to “cupids pair” were said

to be references to TC and LC. A very heavily redacted email from the editor of the Scottish

Page 34 ⇓

Sun, dated 7 January 2011 was said to be a reference to payment to TC and LC. A story

featuring them had been published shortly after the petitioner was sentenced.

Submissions for respondents: SOR and SSOR

Statutory background and approach to judicial review of the respondents’ decisions

[62] Mr Moynihan referred to sections 194C and 194I of the Criminal Procedure

(Scotland) Act 1995, and to certain authorities which he said assisted in considering the

proper scope of judicial review of decisions of the respondents. I did not understand

Mr Dangerfield to take issue with this part of the submission for the respondents.

[63] The Court allows the respondents a degree of latitude in respect to a request for

documents: SCCRC v HM Advocate 2001 JC 36, at paragraph 21. Raza v SCCRC 2007

SCCR 403 reinforced the importance of understanding that the task of the respondents was

to consider and form a view as to whether there may have been a miscarriage of justice. He

drew attention to paragraphs 6-9, of Lord Malcolm’s Opinion. Paragraphs 8 and 9 which are

in the following terms, are in my view of particular relevance:

“[8] It is entirely understandable and appropriate that Parliament did not ask the

Commission to determine whether there had been a miscarriage of justice, since that

would trespass on the exclusive jurisdiction of the court. However, it does not

follow that the Commission must confine itself to whether there are arguable

grounds for an appeal. Rather Parliament has set up a system for the consideration

of a conviction or a sentence by a body of appropriate persons who are independent

of Government and outside the court system, who, if asked to do so, must assess

whether the conviction and/or sentence should be reviewed by the appeal court. If

Parliament had intended the Commission to apply the same test as the sifting judges,

it could have said so in clear terms. However, when deciding on the grounds for a

referral, Parliament did not repeat the statutory provisions for the grant of leave to

appeal, nor did it use language such as ‘arguable grounds’ or ‘prima facie case’.

Rather it has asked the Commission to make a judgment, namely to form a view on

whether it considers that a miscarriage of justice may have occurred. This does not

imply a legalistic assessment of probable cause or stateable case, but a considered

assessment by the Commission of the merits of the matter, and as to whether it is of

the view that there is sufficient concern as to the conviction or sentence to justify a

Page 35 ⇓

referral to the High Court. Recognition that there are arguable grounds for leave to

appeal is a different thing from belief that a miscarriage of justice may have occurred.

Thus a person may identify arguable grounds, but, having considered the matter for

himself, also conclude that there has not been a miscarriage of justice; or to use the

statutory language, that he does not believe that a miscarriage of justice may have

occurred. In any event, cases can and are put before the Commission after refusal of

an appeal by the court - not just after refusal of leave to appeal by the sifting judges.

Plainly an appeal can be refused by the appeal court notwithstanding the existence of

arguable grounds in its favour. It would be a nonsense if the unsuccessful appellant

could ask the Commission to refer the case back to the High Court over and over

again simply because of the existence of those arguable grounds.

[9] The construction which I prefer is supported by the powers of investigation,

including precognition, given to the Commission in the relevant part of the Act. It is

difficult to see how or why those powers would be either needed or exercised if the

Commission's task was as limited as counsel for the petitioner submitted. The full

terms of sections 194B and 194C indicate that the Commission's remit is a

discretionary one. This can be contrasted with that given to the sifting judges, who

have no discretion to refuse leave to appeal if there are arguable grounds of appeal. I

agree with Mr Moynihan's submission that this is inconsistent with the submission

that the Commission's task should be equiparated with that of the sifting judges. The

Commission is not a direct appeal body against a refusal of leave to appeal. Rather

the language and overall structure of the legislation relating to (a) applications for

leave to appeal, (b) the finality provisions, and (c) the role of the Commission, point

to the Commission as being a long stop body designed to step in and act if and when

it is of the view that the circumstances are such that the appeal court should consider

or reconsider a conviction or sentence. For these reasons I reject the main submission

presented in support of the petition for judicial review. In my opinion the

Commission approached its task in the correct manner and on the basis of a proper

interpretation of the relevant statutory provisions.”

[64] R (Ward and Howarth) v CCRC [2005] EWHC 1062 (Admin) was a renewed

application for permission to apply for judicial review of a decision of the body equivalent

to the respondents in England to refer the claimants’ convictions to the Court of Appeal. It

was illuminating as to the approach the respondents must take in considering an

application, and as to the approach the court should take to judicial review of a decision of

the respondents. Of particular assistance were passages at paragraphs 22 (quoting

Lord Bingham CJ in R v CCRC ex p Pearson [1999] 3 All ER 498), 24, 25 and 29-31.

Paragraphs 24, 25 and 29-31 read:

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“[24] Before turning to the grounds advanced on this application it is desirable to

review the role of this court in regard to the decisions of the Commission. As

Lord Bingham CJ stated in Pearson the exercise of the power of referral depends

upon the judgment of the Commission. It is not for this court to consider

substituting its own assessment. In Pearson Lord Bingham concluded the judgment

as follows:

‘64. Had the Commission decided to refer this case to the Court of Appeal,

that would (if based upon a proper direction and reasoning) have been a

reasonable and lawful decision: The decision not to refer was in our view

equally reasonable and lawful. The question lay fairly and squarely within

the area of judgment entrusted to the Commission. If this court were to hold

that a decision one way or the other was objectively right or objectively

wrong, it would be exceeding its function. The Divisional Court will ensure

that the Commission acts lawfully. That is its only role. To go further would

be to usurp the function which Parliament has, quite deliberately, accorded to

the judgment of the Commission. We find no grounds for impugning the

Commission's decision and accordingly refuse this application.’

This approach was reinforced by Lord Woolf CJ in R v CCRC ex parte Hunt

[2001] 2 Cr.App. R. 71:

‘65. It seems to me that, particularly on an application to review a decision of

the Commission, it is important that this court restricts attempts to raise

grounds for challenging the decision of the Commission unless a proper basis

is established, justifying the consideration of the allegation by this court. It is

to be remembered that the Commission only becomes involved after the

exercise by an applicant to the Commission of his rights in the court below

and, if he seeks this, on appeal. It is a residual, but a very important

jurisdiction which the Commission exercises. It imposes a heavy burden on

the Commission. It is a jurisdiction which was previously exercised by the

Home Secretary. It is a jurisdiction which requires the Commission carefully

to exercise the discretion which it is given by Parliament. In these

circumstances it is important that the courts should not in inappropriate cases

allow the Commission to be sucked into judicial review proceedings which

are bound to distract it from fulfilling its statutory role.’

[25] In short, an application of the kind made by the claimants cannot be used to

challenge the correctness or otherwise of the Commission's decision, let alone as a

vehicle for a rehearing of the earlier appeal. The court is only concerned whether

there are arguable grounds that the Commission's decision was reached unlawfully.

[29] There can be no doubt that the claimants vigorously contend that they are the

victims of a gross miscarriage of justice. Indeed, there is scarcely any person or

institution that escapes blame from the claimants (and in particular Mr Ward) for the

outcome of the trial and the subsequent appeals and investigations. It is contended

that the inquiries by the Inland Revenue and the DTI were conducted unfairly and in

Page 37 ⇓

some respects dishonestly, the SFO and the police acted likewise, at the trial the

prosecution witnesses committed perjury and the trial judge was incompetent and

prejudiced. At the appeal stage, the judges were said to have been ignorant and

unfair.

[30] Thereafter the claimants or one of them have protested to the heads of the

SFO and the DTI, to the Attorney General, to the Home Secretary and the Prime

Minister, to the Lord Chief Justice and the Commissioner of the Metropolitan Police,

the Director of Public Prosecutions and various members of parliament. They in

turn, it is complained, have all failed to deal with the case either fairly or responsibly.

[31] Of course, such an unhappy and deplorable state of affairs could exist albeit

the motive for such widespread want of fairness is obscure. But it emphasises a need

for an analysis which reveals specific, targeted and coherent complaints. The history

of the present proceedings is long on assertion and short on clarity. It further

emphasises the need to focus on the specific role of the Commission, putting to one

side the activities of the prosecuting authorities and the reasoning of the Court of

Appeal.”

[65] The passages at paragraphs 22 and 24-25 supported the propositions (a) that the

respondents had, in determining applications, to try to predict the approach of the appeal

court; and (b) that the Court should not enter into the merits of the respondents’ decision,

and substitute its own assessment of them. The jurisdiction is in relation only to the

lawfulness of the decision. In paragraph 31 David Steele J had emphasised the need for

applications for judicial review to include an analysis which revealed specific, targeted and

coherent complaints, and the need to focus on the specific role of the respondents.

[66] R (Ward) v CCRC [2014] EWHC 3071 was referred to for passages at paragraphs 11

and 12. Paragraph 12, in particular, supported the notion that it was for the respondents, a

body with finite resources, to determine the degree of investigation to commit to any

particular application, and in what depth any particular investigation must be considered.

[67] Mr Moynihan submitted that the petitioner’s approach did not identify specific

errors of law on the part of the respondents in reaching a decision on the petitioner’s

application. Rather, he was presenting the court with material and asking the court to reach

Page 38 ⇓

its own conclusion. That was not permissible in proceedings for judicial review. It was

notable that some of the material referred to in submissions - in particular that produced as

numbers 30 and 34, relating to TC and LC, and the information in number 22 about the

information said to have been passed to Euan McColm by a female sender, the daughter of a

Crown witness - had simply never been the subject of submission to the respondents. The

first the respondents had heard of the supposed significance of these items was in the course

of the hearing.

The decision of the Inner House in Sheridan v NGN

[68] Mr Moynihan invited me to consider the decision of the Inner House in Sheridan v

NGN. It had to be approached with care, in that the respondents had not taken it into

account in their decision making. It was, nevertheless, instructive, and there was nothing in

the reasoning of the Inner House that was inconsistent with the respondents’ conclusion that

they did not believe that there had been a miscarriage of justice in respect of the petitioner’s

conviction for perjury.

[69] The Inner House took the unusual step of refusing a new trial, despite the

petitioner’s conviction for perjury. That was because the verdict in the civil trial could be

reconciled with that in the criminal trial because of differences between the two. In the first

place, Fiona McGuire had not given evidence in the criminal trial, but had done so in the

civil trial. The Inner House had observed (paragraphs 70 and 72) that the jury in the civil

trial could not have returned the verdict they did if they had accepted Fiona McGuire’s

evidence. They were entitled to disbelieve her evidence, but believe KT’s evidence about her

relations with the petitioner, and believe the evidence of the SSP members who attended the

meeting on 9 November 2004. They were entitled to believe the petitioner’s denials of

Page 39 ⇓

conduct involving Fiona McGuire, and to disbelieve his denials regarding the events of

9 November 2004. The jury were entitled to form the view that the publication regarding

conduct with Fiona McGuire was untrue and damaged the petitioner’s character and

standing. The jury should not necessarily have been regarded as awarding the petitioner a

badge of total credibility, total reliability or total fidelity: paragraphs 75 and 84.

[70] Mr Moynihan referred to certain parts of the advocate depute’s speech in the

criminal trial as providing a route to understanding the basis on which the Crown had

sought the petitioner’s conviction, in the context of some of the contentions advanced by the

petitioner in the present proceedings. They also highlighted areas in which the evidence at

the criminal trial was different from that at the civil trial.

[71] Fiona McGuire gave evidence at the civil trial. The allegation that she had had a

sexual relationship with the petitioner was one of the defamatory allegations at issue in the

civil proceedings, but did not feature at all in the criminal case. The approach taken by the

Crown to Fiona McGuire was to say that the verdict in the civil trial was irrelevant, and that

Fiona McGuire was not a witness in the criminal proceedings: advocate depute’s

speech (1292-3). The Crown did not contend that the petitioner had perjured himself

regarding relations - or the absence of them - with Fiona McGuire.

[72] So far as KT was concerned, the petitioner had identified two emails which indicated

that a tentative approach had been made to her. This was not fresh evidence. On the

contrary, the question of such a tentative approach had formed part of the evidence in the

criminal trial. KT denied that she had been offered or received money. Mr Bird, in his

evidence at the criminal trial, gave evidence different from that he had given at the civil trial,

and said there had been an approach to her. The advocate depute had referred to that

conflict between KT’s evidence and Mr Bird’s evidence in his address to the jury (1338-1339).

Page 40 ⇓

The petitioner had cross-examined Mr Bird closely about the matter, including the difference

between his evidence in the civil trial and his evidence in the criminal trial.

[73] After the civil trial, but before the criminal trial, Barbara Scott had passed her

manuscript notes of the SSP meeting of 9 November 2004. Those manuscript notes had been

central to the Crown case, not so much because of what they related about the meeting itself,

but because of marginal notes apparently recording an exchange of comments between

herself and Ms Grant, who also attended the meeting.

[74] In relation to the McNeilage tape, it was again relevant to look at the approach taken

by the Crown. The defence position was that the tape was concocted and recorded a

conversation with someone other than the petitioner. The advocate depute pointed out that

it would have been of limited assistance to NGN, in that it contained a denial of sexual

relations with Fiona McGuire, which the Crown recognised was a denial consistently

maintained at all times by the petitioner. It would therefore be a curious record to have

fabricated.

Recovery of material

[75] So far as the law was concerned, Mr Dangerfield had conflated two separate matters.

The question as to what material an accused person was entitled to recover by way of

commission was separate from the question of assessing the significance of material that

ought to have been recovered (or disclosed). The test as to whether material was

recoverable by means of commission and diligence from a party other than the Crown was

that in McLeod. McInnes dealt with disclosure, and particularly with the consequences

where material was disclosed by the Crown only after trial.

Page 41 ⇓

[76] So far as Bannerman was concerned, the case was not one about recovery of material,

but again, about the potential significance of material discovered after a trial had taken

place. What the court had been concerned with was its relevance to the issue in the case.

The material was plainly relevant to the issue, although the court could not say what the

outcome would have been had it been available at the trial.

[77] Recovery might occur before or during a trial, for the purposes of the trial. It might

occur at the stage of an appeal, or there might be recovery of material by the respondents.

Mr Dangerfield was correct to say that the extent of the Crown’s duty to disclose material

was different from the right of the defence to ask the Court to order recovery. The test in

McLeod for recovery of material by the defence was more exacting than the test applied to

the question of whether the Crown required to disclose material. The most instructive

authority was McDonald. In particular, Mr Moynihan referred to paragraphs 70, 71, 73, 75

and 77. At paragraph 70, Lord Rodger of Earlsferry wrote:

“Each of the appellants has been granted leave to appeal against his conviction.

While the appeal court can allow additional grounds to be lodged, it is axiomatic that

it is for an appellant to specify the ground or grounds on which he claims that his

conviction should be quashed. The appellants have all done so. But, as I understand

the position, their contention, that the Lord Advocate is obliged to reinvestigate the

disclosure made in their cases, is not necessarily related to, and is certainly not

confined to, the grounds of appeal which they have specified. Rather, they contend

that the Lord Advocate must reinvestigate the disclosure and supply them with the

results so that they can then see whether any failure to disclose would have made

their trials unfair in terms of Art 6(1). In other words, they say that the

Lord Advocate must search for the material, not because it may bolster their existing

grounds of appeal, but so that they can see whether they can use it to devise some

other ground of appeal.”

[78] Lord Rodger went on to reject that contention. There was no duty on the Crown to

revisit disclosure at large with a view to discovering whether documents not disclosed

might inform the drafting of grounds of appeal not yet identified. The position would be

different if the Crown became aware of material which should have been disclosed but had

Page 42 ⇓

not been: paragraphs 73 and 74. Once material was disclosed, it was for the defence to

consider whether it was of assistance: paragraph 75. If a failure to disclose came to light at

the appeal stage, it would assist an appellant only if he could deploy the new material in

support of an existing ground of appeal or use it as the basis for obtaining leave to lodge a

fresh ground of appeal: paragraph 77.

[79] That analysis related to the Crown, but was as apposite to the respondents, where

material was recovered in the course of an application to them. It was for the petitioner to

articulate his grounds of appeal. The respondents would consider those grounds of appeal,

and might or might not decide to seek production of documents. In the present case the

respondents had struggled to get the petitioner to articulate his position because of the

“rolling nature” of the submissions he presented to them.

[80] What the petitioner ought to have done was assemble the documents available to

him before the SSOR was issued. He should have used them to formulate grounds of

appeal. If there were further, specific documents which he required having done so, he

should have identified them for the respondents. What the petitioner had done, however

was to tell the respondents that they required to pursue every single request he had made of

COPFS for a document.

[81] The petitioner had not actually identified any documents which he needed but did

not have. He had referred to the need to recover the Sheridan costs file - the only item

highlighted on the schedule - but Mr Dangerfield had in fact obtained that. The only

criticism of the respondents was they might have recovered it earlier. The other item

mentioned for recovery had been in relation to the identity of the “tipster”. The articles to

which the “tip” was said to relate had been published long before the trial, and were

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available at the time of the trial. In any event, the combination of the payment to the tipster

and the particular article could have been articulated and put specifically to the respondents.

Particular documents

[82] Mr Moynihan went on to make submissions about particular documents referred to

in the course of Mr Dangerfield’s submissions.

[83] In relation to the pages from Glenn Mulcaire’s notebook, he pointed out that call 6 of

the specification had been restricted by counsel then instructed in the case. It had originally

sought documents showing or tending to show surveillance of any witness connected to the

criminal proceedings, but had been restricted to seek documents showing surveillance of the

petitioner. That had been a tactical decision by her. There was no suggestion that she had

not acted with appropriate professional competence in doing so. It was not open to the

petitioner to raise a challenge to his conviction on the basis of what had been a tactical

decision properly open to his counsel. Among the documents produced was a note showing

an exchange of views between counsel and the solicitor then instructed regarding the

matter (698-9). It included the following, in relation to the Mulcaire material:

“In any event the redactions re others [ie others than the petitioner] I cannot see

relevance of - remember we had to restrict the surveillance calls only to [the

petitioner] not any crown witnesses. How would hacking of crown witnesses cast

doubt upon them?”.

[84] The respondents had specifically dealt with the petitioner’s contentions about

Mr Mulcaire’s notebook in the SOR at paragraphs 53-69 of the SOR. The petitioner had not

engaged with that part of the SOR or sought to demonstrate why the respondents were not

entitled to reach the conclusion that they had on the matter.

Page 44 ⇓

[85] As to material relevant to payments to Fiona McGuire and her trip to Dubai, she had

not been a witness in the criminal trial. The Crown did not allege that she had told the truth

in the civil proceedings. After the SOR, Mr Dangerfield had made representations about

material relevant to Fiona McGuire, particularly in a letter dated 26 May 2016 (79-81). The

respondents had dealt with those representations in the SSOR at paragraphs 11, 12 and 15.

The respondents accepted that the material demonstrated that there had been underhand

conduct on the part of NGN, but they did not consider that the additional evidence about

Ms McGuire would have been likely to have a material bearing on, or a material part to play

in the determination by a reasonable jury properly directed of the critical issue in the trial.

The petitioner had made no attempt in the present proceedings to demonstrate that the

respondents had not been entitled to reach the conclusion that they did. They had

addressed the question in the context of the trial as a whole, including the evidence from

those present at the SSP meeting on 9 November 2004.

[86] The chapter of evidence about an approach to KT by NGN had in substance been

before the jury. The emails, including the one with handwritten annotations, had not been

before the jury. The jury had, however, heard Mr Bird’s evidence admit that an approach

had been made to KT, and admit that his evidence about that had been different at the civil

trial. The conflict between his evidence and that of KT, who said there had been no

approach, had been before the jury. It would have been open to the petitioner, at the trial, to

seek further commission and diligence in relation to approaches to KT on the strength of

Mr Bird’s admission, but he had not done so. He had not sought to have KT re-called.

Mr Bird had referred in evidence to an approach by Andrea Vance. Ms Vance was a Crown

witness and could have been precognosed on the point. It remained the position that there

Page 45 ⇓

was no evidence that KT received any money from NGN. The respondents had considered

this matter and provided reasons for their decision in paragraph 14 of the SSOR.

[87] There was material which was capable of undermining the credibility of Mr Bird,

and demonstrating that NGN were “out to get” the petitioner. Again, the respondents had

accepted that, but had reached the conclusion that this was not likely to have had a material

bearing on the jury’s determination of the central issue as to whether the petitioner had

committed perjury: SSOR, paragraph 12.

[88] Mr Moynihan drew attention to a particular aspect of the respondents’ consideration

of the context of the trial as a whole. There had been evidence before the jury of an entry in

the petitioner’s 2001 diary, on the page for 3 October, of a word scored out, which a witness

gave evidence she thought was “Cupid”. Below was a telephone number ending 887(3.5).

The phone number for Cupid’s nightclub ended 8877. The advocate depute had asked the

jury to infer that the use of the figures 3.5 had been intended to disguise the number. In a

different part of the same diary the same phone number had appeared, with the address for

the nightclub, but associated with the name of an individual. During a meeting with the

petitioner the respondents had asked the petitioner about his position in relation to this

piece of evidence. He thought he had made the entry and said he thought he had phoned

Cupid’s once. He could not think why he had written 3.5, other than thinking it was either a

3 or a 5. The matter is recorded in paragraph 43 of the SOR. The respondents had noted the

petitioner’s position about this evidence in his address to the jury in the criminal trial, which

was that the figure 3.5 suggested someone phoning directory inquiries, writing down two

possible digits and getting it wrong. The respondents had formed the view that his

explanation about the figure 3.5 both to them and in his jury speech had lacked logic, given

Page 46 ⇓

that the last digit was 7 and that he successfully called the number at least once, as

demonstrated by his itemised phone bill for 23 November 2001.

[89] In relation to Charles McCarthy, the petitioner had submitted that taking the items at

pages 265 and 595 together, there was an inference that Mr McCarthy had been paid as the

source of the article. He did not say the respondents were irrational in failing to draw that

conclusion, but simply said that it would be easy for the respondents to confirm whether or

not he Mr McCarthy was the source of the story. In Mr Dangerfield’s letter of 26 May 2016 it

had not been put forward as an inference to be drawn from the documents just referred to,

but as asserted fact. The petitioner had never asked the respondents to look at the two items

together. There was in any event no clear inference to be drawn as to the source of the

article, given that the letter to which it referred had been distributed to 300 people. In the

same list of recipients of payments a number of persons were named, and there was no

obvious reason why Mr McCarthy, were he the source of the information, should not also

have been named. If the article itself had raised an inference that Mr McCarthy had passed

information to the NOTW, he could have been asked about it at a much earlier stage, and it

was not fresh evidence.

[90] The information about the daughter of an SSP member as a source of information to

NGN, had never been raised with the respondents, and nor had the question that the

Conservative MSP might have been cooperating with NGN.

[91] The letters about Mr Massey were not before the respondents at all when they made

their decisions. The letter to which Mr Dangerfield had referred (580) was dated

August 2017. The petitioner had, in the criminal trial, cross-examined Mr Bird about a

suggestion from LC that Mr Massey had represented to her that there was a sum of £20,000

available from NOTW for cooperation. The information appeared to have come from LC’s

Page 47 ⇓

statement to the police. That gave rise to the inference that the petitioner had, at the time of

the trial, at least some information about a relationship between Mr Massey and LC. He had

deployed that in cross-examining Mr Bird. It would have been open to him to have sought a

commission and diligence for the recovery of documents bearing on the matter at the time.

In order to ascertain whether it would be regarded as fresh evidence for the purposes of an

appeal, it would be necessary to examine what was known about it at the time of the trial.

That question had, however, been elided because of the manner in which the judicial review

proceedings had been conducted.

[92] The respondents were a skilled, expert body whose decisions were entitled to a

degree of respect. Skilled and experienced practitioners had applied their minds to the

question of whether they believed that there might have been a miscarriage of justice in the

petitioner’s case. The respondents had had the advantage of being able to review the case as

a whole. They had reached a conclusion which they were entitled to reach.

Decision: SOR and SSOR

[93] 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.

[94] 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: Raza, paragraph 8. 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

Page 48 ⇓

assess whether the petitioner has been able to establish that the respondents acted

unlawfully in reaching their conclusion: see, for example, Ward and Howarth. I agree with

and adopt the comments of David Steele J at paragraph 31 regarding the need for

applications for judicial review to identify specific, targeted and coherent complaints. These

must indicate in what respect the decision has been reached in error of law.

[95] 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:

Ward, paragraph 12. Its decision about what to consider, what to investigate, and in what

depth to do so will, however, be informed by the terms of the application put before it - by

the grounds on which an applicant says an appeal should eventually proceed. I do not

accept the construction which Mr Dangerfield sought to put on paragraph 7 of the

respondents’ terms of service. They give notice that the respondents should not be expected

to follow the instructions of an applicant, or do everything that he might wish them to; they

will act independently in accordance the views that they form of the case and what is

required for its proper conduct. It does not mean that an applicant can present any

complaint or complaint about his conviction, however incoherent or inspecific and expect

the respondents to determine for themselves both what the grounds of appeal should be and

to carry out wide ranging investigations of their own volition. The passage does, however,

indicate that the course taken by the respondents will be one decided upon in the light of the

submissions in the application.

[96] The respondents are not restricted by the terms of an application. They may indeed

make a reference whether or not an application has been made by or on behalf of a person to

whom the reference relates. They are bound to have regard to the terms of any application

or representations made to them by or on behalf of the person to whom the reference relates,

Page 49 ⇓

to any other representations made to them in relation to it, and any other matters which

appear to them to be relevant: section 194D.

[97] It is reasonably clear from the history given in the SOR that the respondents did not

find it easy to ascertain in the first instance what the petitioner’s grounds of appeal were.

The petitioner submitted through his agent a variety of representations after the issue of the

SOR, accompanied by documentary material, and by some degree of complaint that the

petitioner’s agents were having to recover documentary material without the assistance of

the respondents.

[98] What the petitioner contends in this case, in relation to the recovery of documents, is

that the respondents should have exercised their powers under 194I. That section provides

that where the respondents believe that a person or a public body has possession or control

of a document or other material which may assist them in the exercise of any of their

functions, they may apply to the High Court for an order requiring that person (a) to

produce the document or other material to the respondents or to give them access to it; and

(b) to allow the respondents to take away the document or other material or to make and

take away a copy of it in such form as they think appropriate. Mr Dangerfield’s letter of

11 March 2015 contains, as I read the correspondence, the first direct request for assistance

with the recovery of documents. It is simply a request that the respondents obtain from the

Crown all of the documents he had been seeking from the Crown.

[99] As I have noted above, in oral submission Mr Dangerfield characterised his

correspondence with the respondents in this way: “Please obtain this vast swathe [of

material] that we know is there, which you require to do in order to ascertain what ought to

have been disclosed.” There was, he said, no onus on the petitioner to make such a request

Page 50 ⇓

to the respondents; the respondents should have sought the documents - en masse - without

prompting or advice from him, although he had in fact made a request.

[100] The oral submission quoted above encapsulates what Mr Dangerfield wished the

respondents to do. He also made submissions that the respondents should have applied the

test in McLeod in determining what should have been recovered, and sought to marry

particular chapters of material to particular calls in the specification of documents (whether

granted or not). His submission was, however, really that the respondents should have,

whether at his prompting or on their own initiative, simply sought everything that he was

asking the Crown to disclose. His submission came to be simply that everything should

have been obtained, with a view to ascertaining from it what items should have been

produced at an earlier stage. The consequence of his analysis was that the respondents

should have, without addressing any particular legal test as to whether a particular item on

the schedule provided to them ought to have been made available (whether by way of

recovery or by way of disclosure) sought everything that he himself had been seeking from

the Crown.

[101] No basis has been identified in the submissions made to me for saying that the

respondents erred in law in failing to comply with Mr Dangerfield’s request. It is an entirely

unfocused request that does not marry any particular chapter of the material sought to any

particular proposed ground of appeal. What Mr Dangerfield submitted was that the

respondents ought to have facilitated what amounts to precisely the sort of exercise

discussed, and rejected, by Lord Rodger in McDonald in the passages referred to above. To

review material at large with a view to discovering whether there might be material that

ought to be disclosed, is not an exercise that the Crown requires to embark on after

conviction. I can see no basis for saying that the respondents required to exercise their

Page 51 ⇓

statutory powers to request significant volumes of material with a view to discovering what,

if any of it, ought to have been produced earlier.

[102] Further, Mr Dangerfield’s submissions, insofar as he sought to make them by

reference to documents sought in the commission and diligence process before the trial, left

to one side the circumstance that, for example, counsel had made a decision to restrict call 6,

in the context of the pages of Glenn Mulcaire’s notebook. He made submissions which were

in my view speculative as to what a commissioner might or might not have redacted had

that commissioner been presented with unredacted information relevant to Fiona McGuire.

He invited speculation as to what calls might have been granted if further information had

become available.

[103] In the course of submissions for the petitioner there was very little said as to what

documents, if any, the respondents were being asked to try to recover, and had not tried to

recover. The respondents were criticised specifically for having failed to obtain the

“Sheridan costs file”, but in fact that was a document that had come into the hands of the

petitioner, and on the significance of which Mr Dangerfield had made submissions. There

remained a running complaint about failure to obtain Mr McColm’s telephone records. I

make two observations about that. The extent of his telephone bill was apparent from

material sent to the commissioner before the trial. That material did not include the email

making reference to “several calls every day to a number of individuals”, but I fail to see

what that reference adds. I do not see any substantial basis in that expression, or in the

information that Mr McColm was on certain occasions the recipient of information about the

affairs of the SSP, for the inference that Mr Dangerfield seeks to draw, namely that the calls

must have been to members of the SSP who gave evidence against the petitioner.

Page 52 ⇓

[104] The question as to whether particular powers of recovery ought to have been

exercised seems to me to be beside the point. 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. I

accept as correct the analysis proposed by the respondents in reliance on the reasoning in

McDonald. An appeal is not a general inquiry into the background of the case or

prosecution, but a statutory process to examine particular grounds of appeal that have been

formulated and placed before the court: McDonald, Lord Rodger at paragraphs 70 and 71.

Once documents have been recovered, it is for the defence to decide what they make of

those documents, and to formulate grounds of appeal: McDonald paragraphs 73-77. I see no

reason why the analysis in McDonald relative to appeals does not also apply where an

application is made to the respondents. If, having received the documents, and formulated

his grounds of appeal, there was material which remained outstanding to support those

grounds of appeal, at that stage the petitioner could have made a focused request for

assistance.

[105] I turn to the contention that the respondents erred in their treatment of the material

presented to them. In relation to the submission that the material, or at least some of it, is

capable of supporting the notion that NGN engaged in unlawful and/or unethical practices,

and potentially also of supporting the petitioner’s contention that they were “out to get”

him, I note first, that the respondents did not really dispute that. The Inner House, when

Page 53 ⇓

presented with material to similar effect in Sheridan v NGN, in which the petitioner was the

pursuer, recorded the following expression of view about it from paragraphs 94, 95 and 98:

“94 It is difficult to see what answer there might be to some of the allegations

made. We were directed to what appeared to be records of emails showing

deliberate steps taken by the defenders to ensure that Fiona McGuire would not be

available if the pursuer's motion to recall her had been successful. There is material

apparently tending to show that she was provided with a trip to Dubai at the

relevant time for that express purpose. The pursuer also contrasted two sets of

documents apparently printed from [NGN’s] records and appearing to show that in

the document produced in response to an order of the court in the criminal trial, the

defenders had falsified the record by excluding an entry which would have

confirmed that they had indeed paid for such a trip. Other material was relied on as

apparently showing a pattern of phone hacking, which was said to have allowed

[NGN] to identify and trace people with whom the pursuer had private contact, with

a view to compelling them to give evidence against him. We found the pursuer’s

analysis sufficient to demonstrate a prima facie case for [NGN] to answer, and it was

far from clear what answer, if any, there could be.

95. Had we been in a position to treat the pursuer's allegations as established

fact, we consider that the picture thus painted would have been indicative not only

of wilful contempt on [NGN’s] part in relation to a specific order of the court in the

criminal process, but also of such a disregard for proper journalistic conduct and for

certain requirements of the criminal law that we would have had to give serious

thought to the question whether [NGN] should be allowed to proceed further.

98. We have commented above on the pursuer's allegations as to the illegality

and impropriety of [NGN’s] conduct. We can reach no concluded view on such

matters. A proof or a criminal trial would be necessary to enable facts to be explored

and submissions made. We accept that the documents lodged by the pursuer in his

appendix raise serious questions about the conduct of senior members of staff of

[NGN].”

[106] I am in a similar position, in that the material presented to me supports allegations of

unlawful and reprehensible conduct on the part of NGN. Considering the decision of the

Inner House more generally, the verdict in the civil jury trial, which that decision left intact,

is not inconsistent with a conclusion that there was no miscarriage of justice in the criminal

trial. I accept as correct the analysis offered by Mr Moynihan and recorded above. There

were significant differences between the evidence and issues in the civil trial and the

criminal trial. Perhaps the most notable of these was the allegation, live in the civil trial, but

Page 54 ⇓

not in the criminal trial, regarding sexual relations between the petitioner and

Fiona McGuire.

[107] As I have already observed, the petitioner’s submissions did not engage with the

decisions of the respondents or the reasoning provided in the SOR and the SSOR. It

appeared that the petitioner was placing material before the court and asking the court to

reach a conclusion different from that reached by the respondents. That is not a legitimate

exercise. The question for me is whether the respondents were entitled to conclude that they

did not believe that there might have been a miscarriage of justice.

[108] The consistent theme of the petitioner’s submission was that, had the material now

available been available to a jury, it could not but have bolstered his defence and weakened

the Crown case. It could not have done other than had a material effect on the deliberations

of the jury. His contention at trial was that he had been the victim of a conspiracy at the

hands of NGN, and that a miscarriage of justice had resulted from his inability to place

before the jury all the material now available that supported that contention. The

respondents have maintained throughout that there was a body of evidence against the

petitioner from witnesses about whom there was no evidence as to involvement in any

conspiracy. Mr Dangerfield sought to demonstrate that there was in the material now

available information indicating that those witnesses were “tainted”.

[109] So far as the material relevant to Fiona McGuire, including her removal by NGN to

Dubai during the civil trial, is concerned this is a matter which the respondents considered

in the SSOR, quoted above. They considered it at paragraphs 11 and 12. Those passages

were not even referred to in the petitioner’s submissions. There was no suggestion that the

respondents erred in law in applying the test that they did, namely whether the material

was likely to have had a material bearing on, or a material part to play, in the determination

Page 55 ⇓

of a reasonable jury, properly directed, of a critical issue at trial, namely whether the

petitioner committed perjury in certain specified respects. There was no suggestion that

they were not entitled to look at the question in the context of the trial as a whole. Rather,

Mr Dangerfield offered here, as throughout this part of his submissions, what was really an

intuitive judgment that more evidence about wrongdoing on the part of NGN could not but

have had a bearing on the jury’s consideration of that central question.

[110] The information that the McNeilage tape had been bought for £200,000 was the

subject of evidence at the trial, and while Mr Dangerfield submitted that it should have been

recovered in the commission and diligence process, he did not seek to demonstrate that it

was new evidence.

[111] The material said to support an inference about a payment to Mr McCarthy is in my

view irrelevant, for the reasons proposed by the respondents. First, the matter was never

placed before the respondents on the basis that an inference was being drawn from two

items in the material. I do not consider that the respondents should have been expected, on

the basis of the correspondence from the petitioner’s agents, to work out for themselves that

such an inference was being proposed. I do not consider that the material supports the

inference sought to be drawn.

[112] I have already expressed my view about the material regarding Mr McColm’s phone

bill, said to provide a basis for saying that SSP witnesses were collaborating with NGN.

[113] The information about KT is not new. The points made by the respondents about

this are well-founded. Mr Bird gave evidence in the criminal trial that an approach had

been made to her. That conflicted both with her evidence at the criminal trial, and his own

evidence in the civil trial. There was no fresh application for commission and diligence at

that stage, and nor was there any effort to recall KT. Steps could have been taken to

Page 56 ⇓

precognose Andrea Vance, said to be the source of the approach. The respondents dealt

with this chapter of the petitioner’s representations in the SSOR, and again, there has been

no submission focused on demonstrating error of law on their part to the material available

to them.

[114] So far as Mr Baldassara is concerned, the respondents dealt with the contention that

he had conspired against the petitioner in paragraph 99 of the SOR, and the submissions for

the petitioner did not directly challenge the lawfulness of that conclusion, and provided no

focused basis on which it could be said to be wrong in law.

[115] The material relevant to phone hacking, and in particular the material in

Mr Mulcaire’s notebook, was the subject of detailed consideration in the SOR, at

paragraphs 53-69. It considered first, the point that no challenge was made to redaction

before the trial, at a time when the appellant was legally represented. Even if that did not

preclude a late challenge, the decision to redact was of a discretionary nature, and could

only be challenged on the basis that no reasonable commissioner could have decided to

redact it. The respondents took the view that that could not be demonstrated. Nonetheless,

they considered the question whether, if the exclusion of the redacted information were

wrongful, there had been a miscarriage of justice as a result. They noted what was the

content of the redacted portions. They took into account the query raised by the petitioner’s

own counsel as to how the circumstance that witnesses might have been hacked would cast

doubt on their credibility. The respondents were prepared to accept that information about

phone hacking tended to undermine Mr Bird’s credibility, and support the proposition that

NGN were “out to get” the petitioner. Having regard to the other evidence in the case, and

in particular the evidence from witnesses not connected with NGN, the respondents formed

the view that there was no real possibility that the verdict of the jury would have been

Page 57 ⇓

different had the unredacted passages been available. Again, the petitioner did not refer to

this passage of reasoning or seek to demonstrate why it, or any particular part of it, was

wrong in law. I see no basis for concluding that the respondents were not entitled to form

the judgment that they did on this matter.

[116] So far as the information about LC, TC and Mr Massey is concerned, it postdates the

decisions complained of, and is irrelevant.

[117] I do not consider that the respondents can be faulted in any way for having failed to

appreciate, unguided, the identity of the person said to be the daughter of an SSP member

(the sender of an email to Mr McColm, referred to in paragraph 52, above) and any potential

significance of that. I do not consider that the respondents can reasonably be expected to

have identified the point raised in submission about Mr Monteith in the absence of

representations specifically directing them to the material. I do not accept that they required

to trawl through every piece of documentary material produced by the petitioner in a search

for something that might be of significance.

[118] As to the remainder of the documents referred to by Mr Dangerfield, he made no

particular submission as to how they should have informed the respondents’ conclusion.

Rather, as I understood it, he said the respondents should have recovered the material, and

also that it, in general terms, tended to lend weight to the notion that there was a conspiracy

against the petitioner, led by NGN. I was not directed to any material which demonstrated

that the respondents were not entitled to form the view that the jury in the criminal trial had

heard evidence from witnesses in respect of whom there was no evidence of participation in

a conspiracy. The information that Mr Dangerfield sought to deploy with a view to

demonstrating participation on the part of SSP members in a conspiracy appeared to invite

speculation rather than legitimate inference.

Page 58 ⇓

[119] 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.

Respondents’ decision of 1 June 2017

[120] Among the matters dealt with in the SOR and SSOR were allegations against

Mrs Sheridan’s senior counsel. In both the SOR and SSOR the respondents dealt with them

on the basis that they were unsubstantiated. On 28 April 2017 Mr Dangerfield wrote to the

respondents enclosing an opinion prepared by senior counsel regarding the material said to

be relevant to these allegations. The opinion challenged the proposition that the

respondents could properly say, in the light of the information presented, that the

allegations remained unsubstantiated.

[121] On 1 June 2017 the respondents made a further decision and gave reasons for their

stated belief that the information did not justify the conclusion that there had been a

miscarriage of justice. The information was information said to suggest that there had been

information leaked to NOTW by at least one of Mrs Sheridan’s legal advisers, before the

conclusion of the trial.

[122] This decision superseded the earlier decisions in relation to this particular part of the

petitioner’s application.

Page 59 ⇓

Petitioner’s submissions

[123] The petitioner’s contention in these proceedings was, initially, that the respondents

were not entitled to make a further decision about the matter as they had done by their letter

of 1 June 2017. That was not his position at the hearing. The argument was, rather, that the

respondents made a decision that they were not entitled to make, on the basis of the

information available to them.

[124] In the course of his submissions, Mr Dangerfield drew my attention to the following

documents.

(a) A staff expenses claim form (540) which contains an entry dated 26 May 2010:

“Dinner with Paul McBride QC – Tommy Sheridan inquiries”. It bears to relate

to expenses incurred by a James Mulholland, reporter, and is signed

“J Mulholland”, and dated 1 June 2010.

(b) An email dated 3 September 2010 (541-2) from Mr Bird to Mr McColm, which

contains the following passage:

“The gossip, even from Gail Sheridan’s legal team, is that Sheridan will be

found guilty as the evidence against him is overwhelming. Crown have

apparently given him two chances to cop a plea so far and let Gail off. But

Sheridan has refused.”

others which includes the following: “Sheridan stuff. I’m meeting McBride this

afternoon for a coffee. We’re going to be ultra discreet.”

(d) An email dated 24 December 2010 (547) on which the name of the sender had

been redacted, to James Mulholland, forwarding a document part of which

appeared at 547 to 560. That document appears to be a summary of the Crown

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case against Mrs Sheridan, prepared by the junior solicitor advocate for

Mrs Sheridan.

(e) Two newspaper stories appeared, on 26 December and 2 January 2011

(pages 689-695), in which passages from the pages just referred to appeared.

There appeared to be some misunderstanding on the part of some of those at

NOTW, in that the document was referred to in an email of 28 December

2010 (565-6) as a “60 page Crown document leaked to us by [name redacted]”. It

is also referred to as a “dossier compiled by Crown Office lawyers” in one of the

newspaper stories just referred to, when it was in fact a defence summary of the

Crown case.

[125] Mr Dangerfield went on to submit that there had been a breach of confidentiality on

the defence side, and the only individual named in the available papers as the source of that

breach was senior counsel. He said that it would be easy for the respondent to establish

who was the source of the breach, by getting the unredacted documents. He said that what

had been presented “passed the McLeod test by a wide margin” because it was relevant to

grounds of appeal based on fresh evidence, indicating an abuse of process. Mr Dangerfield

had not found any authority directly in point as to whether conduct of the sort alleged here

by a legal adviser of a co-accused would give rise to a miscarriage of justice. He did refer to

the circumstances in which the prosecution of Tulisa Contostavlos was brought to an end

in 2014 by a decision of an English court because of the conduct of a Crown witness (an

undercover reporter who worked for the Sun newspaper) which suggested that that witness

had manipulated the evidence of another witness relied on by the Crown. He did not refer

me to any published decision on the matter, although passages from the trial judge’s oral

decision bear to be reproduced in some of Mr Dangerfield’s correspondence with the

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respondents. Insofar as I understand the circumstances of that case from press reports at the

time they are not directly analogous.

Respondents’ submission

[126] Classically, an abuse of process was something involving the Crown or other state

authorities. Examples included situations such as entrapment: see for example, the

discussions in Jones v HM Advocate 2010 JC 255; Mack v The Queen [1988] 2 RCS 903. R v

Momodou and another [2005] 1 WLR 3442 was an example of a case where the irregular

conduct of a party other than the Crown in relation to the trial proceedings had been relied

on by the appellant in seeking to appeal against conviction. The trial had concerned violent

disorder in an immigration detention centre which was run mostly by the staff of Group 4, a

company. Group 4 was initially suspected of corporate manslaughter, and also commenced

civil proceedings against the Bedfordshire Police authority and was therefore directly

involved both as a potential defendant in criminal proceedings, and a claimant in civil

proceedings. It was contended that the provision by Group 4 of various forms of group

therapy provided to witnesses, and of witness training, had contaminated their evidence so

that the jury could not properly assess the evidence. The appeal did not succeed, given the

way in which matters were dealt with at trial by counsel and by the judge in his directions to

the jury.

[127] The reference to Momodou was for the proposition that the activities of third parties

might constitute an abuse of process making a fair trial impossible, requiring the trial

process to be brought to an end: paragraph 54. Stuurman v HM Advocate 1980 JC 111 was

another example of a case in which the conduct relied on in support of a plea of oppression

Page 62 ⇓

was conduct by a third party, namely the publication of particular news reports in respect of

which those responsible had admitted contempt.

[128] Shetland Sea Farms v Assuranceforenigen Skuld 2004 SLT 30 was a civil case in which

the court recognised that it had an inherent jurisdiction to dismiss a claim where the party

pursuing it had been guilty of an abuse of process. Lord Gill, at paragraphs 143-145, both

defined abuse of process, and gave several examples of ways in which a litigant might abuse

the process of the court:

“[143] This court has an inherent power to dismiss a claim where the party pursuing

it has been guilty of an abuse of process. In doing so it protects the integrity of its

procedures by preventing one party from putting the other at an unfair disadvantage

and compromising the just and proper conduct of the proceedings (cf Jacob, ‘The

Inherent Jurisdiction of the Court’ in The Reform of Civil Procedural Law , pp 221ff).

But this is a drastic power. The court should exercise the power sparingly, because it

may involve the denial of a well-founded claim (cf J A Jolowicz, ‘Abuse of the

Process of the Court: Handle With Care’ (1990) 43 CLP 77). In considering whether

to exercise the power the court must keep in mind the general right of every litigant

to pursue his case to judgment, however unpromising his case may seem to the

court.

[144] There are many diverse ways in which a litigant can abuse the process of the

court; for example, by pursuing a claim or presenting a defence in bad faith and

with no genuine belief in its merits (eg Lonrho Plc v Al-Fayed (No 2) [1992] 1 WLR 1 );

or by fraudulent means (Levison v Jewish Chronicle Ltd, supra; Arrow Nominees v

Blackledge, supra); or for an improper ulterior motive, such as that of publicly

denouncing the other party (Lonrho Plc v Al-Fayed (No 2), supra, Millett J at p 7G-H ).

Hunter v Chief Constable of West Midlands ([1982] AC 529) supports the existence of the

court's inherent power in such cases, but the facts of that case are so far removed

from those in the present case that I need not consider it further.

[145] To found a claim on a false narrative of fact supported by fabricated

documents is clearly an abuse of process.”

[129] It was clear that conduct on the part of a third party could give rise to an abuse of

process, or oppression. The question was, however, whether the respondents had been

entitled to decline to refer the matter to the High Court. The petitioner had not identified

any proper basis on which the conduct alleged could be said to have given rise to an abuse

Page 63 ⇓

of process or oppression, or to have caused there to be a miscarriage of justice in respect of

the jury’s verdict that the petitioner was guilty of perjury. There was no indication that the

petitioner had been put to an unfair disadvantage, or that anything had occurred to

compromise the just and proper conduct of the proceedings. The most egregious part of the

alleged conduct, namely passing the report to NOTW, took place after the trial, and could

not have impacted on the decision of the jury.

Decision

[130] The respondent summarised the reasons for its decision in the following way:

“In summary, the Board noted that the opinion did not narrate any new evidence –

ie evidence that the Commission did not have in its possession when it reviewed [the

petitioner’s] case - and it remains of the view that the evidence does not support the

allegations that Mr McBride was working for NGN and the Crown, and/or that he

disclosed confidential details of Mrs Sheridan’s defence, and that of Mr Sheridan, to

NOTW; nor does it support the other allegations.

In any event, the Board again considered how any of the foregoing matters could be

said to have materially weakened the case presented against [the petitioner] or have

assisted his defence. At no time during the review of [the petitioner’s] case, despite

being asked to do so, have you been able to specify how any of the foregoing matters

could have done so, and the Board noted that the opinion [of counsel] does not

address this matter either.”

[131] I accept that in the absence of any explanation for the possession of the defence

summary of evidence by NGN, and on the basis of the content of the internal NGN emails,

an inference that falls to be drawn is that someone in Mrs Sheridan’s legal team passed the

information to them. The respondents accepted in the course of submissions that the

defence summary of the Crown evidence must have come from one of Mrs Sheridan’s legal

advisers. The material produced is capable of supporting that proposition. For the

avoidance of doubt I do not regard it as supporting allegations that Mrs Sheridan’s counsel

“worked for” NGN or for the Crown.

Page 64 ⇓

[132] Mr McBride died in 2012. He is not in a position to answer the allegations made in

these proceedings. None of Mrs Sheridan’s legal advisers is a party to these proceedings. I

am not making any factual finding that any particular individual passed the defence

summary to NGN, that any particular communications took place, nor that any meeting or

meetings actually took place, far less what may have happened at any such meeting or

meetings. These contentions have not been the subject of proof before me.

[133] What I require to consider is whether the respondents acted lawfully in responding

as they did to the information that the petitioner gave them. The respondents were

provided with information which is on its face capable of supporting the contentions (a) that

one of Mrs Sheridan’s advisers had passed a confidential defence document to NOTW,

(b) that someone involved in Mrs Sheridan’s defence had disclosed that he or she thought

the evidence against the petitioner was strong, and that the petitioner had been offered and

declined opportunities to plead guilty on the basis that Mrs Sheridan’s not guilty plea would

be accepted; and (c) that Mr McBride had dinner with James Mulholland, a reporter, with

another meeting, over coffee, at least arranged by Mr Mulholland.

[134] The respondents required to consider whether they believed, on the basis of that

information, that there might have been a miscarriage of justice. Any decided cases in

which a court had found there to have been a miscarriage of justice in analogous

circumstances would be relevant to their decision, and to the lawfulness of their decision.

Neither party directed me to any authority directly in point. I have no difficulty in accepting

that the conduct of a party other than the Crown might found a plea of oppression, or

amount to an abuse of process in the sense described in Shetland Sea Farms, namely a

situation where the conduct puts a party to the proceedings at an unfair disadvantage, and

compromises the just and proper conduct of the proceedings.

Page 65 ⇓

[135] I was not invited to consider whether oppression, rather than abuse of process,

would be the proper nomen juris where conduct such as that alleged in this case was said to

bar criminal proceedings. In the absence of submission on the point, I incline to the view

that, in the context of criminal proceedings, the appropriate plea might be one of oppression,

given the flexible and adaptable character of that plea: see, for example, the discussion in

Jones at paragraphs 30-37, in the context of entrapment. My decision in this case, however,

does not turn on a distinction between abuse of process and oppression or a view as to the

appropriate plea in criminal proceedings.

[136] In principle, I accept that failures by professional advisers to respect their

professional obligations regarding confidentiality could in some circumstances compromise

the just and proper conduct of proceedings (Shetland Sea Farms) or be such as to render the

prosecution of an accused person an abuse of state power and an affront to justice (Jones,

paragraph 30). The obligation is a very important one. It is necessary to support the

fundamental right of access to a court and to a fair trial. A client must be able to speak

privately and freely to her lawyer, and trust that her confidentiality will be maintained. This

is, for example, reflected in Principle (b) of the CCBE Charter of Core Principles of the

European Legal Profession:

“It is of the essence of a lawyer’s function that the lawyer should be told by his or her

client things which the client would not tell to others - the most intimate personal

details or the most valuable commercial secrets - and that the lawyer should be the

recipient of other information on a basis of confidence. Without the certainty of

confidentiality there can be no trust. The Charter stresses the dual nature of this

principle - observing confidentiality is not only the lawyer’s duty - it is a

fundamental human right of the client.”

[137] Confidentiality serves the administration of justice as well as the interests of the

individual client, as Article 2.3 of the CCBE Code of Conduct recognises:

Page 66 ⇓

“2.3.1. It is of the essence of a lawyer’s function that the lawyer should be told by his

or her client things which the client would not tell to others, and that the lawyer

should be the recipient of other information on a basis of confidence. Without the

certainty of confidentiality there cannot be trust. Confidentiality is therefore a

primary and fundamental right and duty of the lawyer.

The lawyer’s obligation of confidentiality serves the interest of the administration of

justice as well as the interest of the client. It is therefore entitled to special protection

by the State.”

[138] I have, however, been unable to identify a basis on which it can be said that the

respondents erred in law in declining to refer the petitioner’s case to the High Court. The

petitioner was unable to say why, if the allegations directed against the legal advisers were

true, they could be said to have barred criminal proceedings or otherwise caused there to be

a miscarriage of justice as regards his conviction for perjury. Mr Dangerfield submitted that

an unredacted copy of the material would disclose who had passed the defence summary of

Crown evidence to NOTW. The identity of the party responsible, however, is beside the

point in the present context. What is important is the effect, if any, of a breach of

Mrs Sheridan’s confidentiality in the criminal proceedings against the petitioner. I agree

with the proposition that the most egregious conduct alleged - that of passing the defence

summary to NOTW - appears to have taken place after the end of the trial.

[139] Assuming that each of the allegations (a) to (c) set out in paragraph 133 was proved

to be true, I have been unable to identify any basis on which the petitioner has been

prejudiced or his conviction rendered unsafe. No basis was identified by Mr Dangerfield in

the course of submissions on which it could be said that the petitioner was put at an unfair

disadvantage in the criminal proceedings by the conduct alleged; or that the fair and just

conduct of those proceedings was compromised by it. The challenge to the decision of

1 June 2017 therefore fails.

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Disposal

[140] I therefore sustain the pleas in law for the respondents, repel the pleas in law for the

petitioner, and dismiss the petition.

Use of names in this opinion

[141] Counsel for the respondents asked me generally to anonymise references to

individuals named in the submissions, including the late Mr McBride. Mr Dangerfield said

that no anonymisation was required, in relation to any individual mentioned.

[142] I was alive to the issue particularly because I observed that some individuals,

particularly KT and AK, had been referred to only by their initials in the Opinion of the

Inner House in Sheridan v NGN and similarly by Lord Turnbull in his Opinion regarding

expenses and interest: Sheridan v NGN [2018] CSOH 20. These are individuals who gave

evidence that they had engaged in sexual activity with the petitioner. Redaction of name is a

derogation from the fundamental principle of open justice. As Lord Reed observed, giving

the opinion of the court, in A v Secretary of State for the Home Department 2014 SC (UKSC) 151:

“[23] It is a general principle of our constitutional law that justice is administered

by the courts in public, and is therefore open to public scrutiny. The principle is an

aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian

News and Media Ltd) v City of Westminster Magistrates' Court (para 1), society depends

on the courts to act as guardians of the rule of law. Sed quis custodiet ipsos custodes?

Who is to guard the guardians? In a democracy, where the exercise of public

authority depends on the consent of the people governed, the answer must lie in the

openness of the courts to public scrutiny.

[24] The significance of the principle of open justice is illustrated by the fact that it

was one of the matters covered by the constitutional legislation enacted following the

accession of William and Mary. The Court of Session Act 1693 (c 42), which remains

in force, provides:

‘That in all time coming, all bills, reports, debates, probations and others

relating to processes shall be considered, reasoned, advised and voted by the

Lords of Session with open doors, where parties, procurators and all others

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are hereby allowed to be present, as they used to be formerly in time of

debates, but with this restriction, that in some special cases the said Lords

shall be allowed to cause remove all persons, except the parties and their

procurators.’

The corresponding Act ‘Anent Advising Criminal Processes with Open

Doors’, passed on the same date, made similar provision for the High Court

of Justiciary. As Lord Shaw of Dunfermline commented in Scott v Scott

(p 475), the two Acts formed part of the Revolution Settlement, and bore

testimony to a determination to secure civil liberties against judges as well as

against the Crown.

[25] The principle that courts should sit in public has important implications for

the publishing of reports of court proceedings. In Sloan v B (p 442) Lord President

Hope, delivering the opinion of the court, explained that it is by an application of the

same principle that it has long been recognised that proceedings in open court may

be reported in the press and by other methods of broadcasting in the media. ‘The

principle on which this rule is founded seems to be that, as courts of justice are open

to the public, anything that takes place before a judge or judges is thereby necessarily

and legitimately made public, and, being once made legitimately public property,

may be republished’ (Richardson v Wilson, per Lord President Inglis, p 241).”

[143] Lord Reed, at paragraph 41, specifically mentioned an example given by the

Lord President of a female pursuer where the decision turns on intimate medical evidence,

as being capable of raising issues which could warrant a qualification of the principle of

open justice. Lord Reed accepted that it would be in the interests of justice to protect a party

to proceedings from the painful and humiliating disclosure of personal information about

that party where there was no public interest in its being publicised. The gender of a party

is perhaps not obviously significant to their susceptibility to humiliation or pain regarding

the publication of intimate medical information, but what is clear from the example is that

there can be circumstances other than those identified by Lord Neuberger in Bank Mellat v

Her Majesty’s Treasury [2014] AC 700 (litigation involving children, cases where threats of

privacy breaches are alleged, and cases where commercially valuable secret information is in

issue) where derogation from the principle of open justice may be justified.

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[144] The Lord President’s guide to the Data Protection Act 1998 enjoins judges in

preparing opinions to have regard to the principles of the Data Protection Act 1998. In

particular, they should ask themselves whether the inclusion of personal information (such

as addresses, bank accounts and telephone numbers etc) is relevant to the decision or

necessary for the purposes of pronouncing judgment. The processing of data is now the

subject of provision in the General Data Protection Regulation (Regulation (EU) 2016/679)

(“GDPR”) and the Data Protection Act 2018, but the underlying question as to whether

publication of particular information is necessary remains the same. Personal data revealing

racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union

membership, and the processing of genetic data, biometric data for the purpose of uniquely

identifying a natural person, data concerning health or data concerning a natural person’s

sex life or sexual orientation are recognised as falling into a special category, and is

prohibited by Article 9 GDPR, except where a particular condition or conditions specified in

that article are met. One of those conditions is that processing is necessary when courts are

acting in their judicial capacity.

[145] KT and AK both gave evidence in earlier proceedings and were named in the press

at the time. Other witnesses who had attended Cupid’s and were referred to in the

reasoning of the respondents also gave evidence in earlier proceedings and were named in

the press at the time. To that extent, it may be that relatively little is achieved, by way of

preservation of their privacy, by using their initials, rather than their names, in an Opinion.

It does not, however, seem to me that publishing their full names, again, is necessary for the

production of this Opinion. The context is a context which involves their sexual lives. Parts

of their sexual lives which they, or at least most of them, might reasonably have expected to

remain private, have over the years been the subject of publication, repeated with each fresh

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chapter of the legal proceedings. Those proceedings all emanate from a decision of the

petitioner to sue for defamation, in the course of which he told lies, and falsely accused

others of lying. As Lord Turnbull’s Opinion makes clear, KT is an individual who at the

time of the civil trial was being asked to testify about sexual conduct involving her which

had taken place some years before, and the publication of her identity at that time caused

her distress and embarrassment: Sheridan v NGN [2018] CSOH 20, paragraphs 42-46.

Against that background, and bearing in mind the category identified by the Lord President

and by Lord Reed in A, of information which, if published, would cause pain and

humiliation, it seems to me appropriate that the court should not be responsible for the

further publication of the names of these individuals.

[146] It is a feature of the particular proceedings before me that the petitioner makes

allegations about a variety of persons who are not parties to the proceedings, and who have

not given evidence in the proceedings. The extent to which it may or may not be

appropriate to publish the identities of persons who are made the subject of allegations in

such a context will require consideration on a case by case basis, and always bearing in mind

both the fundamental principle of open justice and the Article 8, data protection, and other

rights of the persons involved. I see no basis for, or point in, redacting the name of

Mrs Sheridan’s senior counsel.