Scottish High Court of Justiciary Decisons

[2015]HCJ49

NOTE BY LORD BURNS

In the cause

HER MAJESTY’S ADVOCATE

against

ANDREW EDWARD COULSON

1 June 2015

[1]        The accused lodged a minute under section of the 1995 Act in respect of the relevancy of the indictment in this case which contains a charge of perjury.  A hearing upon that minute took place in October 2014.  In the course of that discussion the question arose as to whether the matter could be dealt with at that stage.  There was brief discussion and, on the next day, Mr MacLeod withdrew the minute but reserved his right to argue relevancy at the end of the Crown case.  He did that on the basis that before this matter could be resolved, I required to hear the evidence in the case and it would be more appropriate to defer consideration of the issues raised until the trial.  The advocate depute was of that view

also and I allowed Mr MacLeod to do that.  

[2]        Now that the Crown case is concluded, it appears to me that there was little, if anything, in the way of evidence which could not have been canvassed in October by way of agreement and documentary productions.  However, it may be that it was thought by the crown that additional evidence might be available at trial and section 67 notices have been lodged since then and witnesses precognosed on oath.  It may also be that something could have turned on the extent to which Mr MacLeod’s other submissions of insufficiency of evidence would be sustained at the end of the Crown case in relation to the various heads of the charge. 

The Sheridan trial 

[3]        In December 2010 Mr Sheridan went on trial (the original trial) for perjury committed during his libel action against the News of the World in which he won substantial damages.  He was convicted.  One of the important pieces of evidence against him was a video tape sent to the News of the World by a Mr McNeillage (the McNeillage tape) in which Mr Sheridan was said to appear and could be identified by his voice.  It was dated 18 November 2004. The News of the World purchased that tape.  Mr Sheridan was heard to admit matters which he had denied in his civil jury trial.  Having sacked his Counsel at a relatively late stage in the original trial, he conducted his own defence and lodged an additional list of defence witnesses, which included the present accused Mr Coulson (the accused) who, at the material time, had been Editor or Depute Editor of the News of the World.  On 10 and 11 December 2010 the accused gave evidence as a defence witness in which he is alleged in this trial to have perjured himself.  The perjured evidence is said to have been related to his knowledge of “phone hacking” by employees of the paper or people acting for the paper and of payments to them (paragraph (a)) and to corrupt police officers by the paper (paragraph (b)).  I shall refer to this as the false evidence for these purposes.  During his evidence in chief, the accused made an identification of the voice of Mr Sheridan in the McNeillage tape and that a “fleeting glance” of Mr Sheridan could be seen (the identification evidence). 

The accused’s submissions on the relevancy plea

[4]        Mr MacLeod argued that the charge did not libel a relevant charge of perjury since the evidence said to be false was not relevant to the live issues at the original trial.  He quoted the statement of the Lord Justice General Emslie in Lord Advocate’s Reference (No 1 of 1985) 1986 JC 137 at 145 that:

“All that is required is that it should be clearly understood that a charge of perjury will not lie unless the evidence alleged to be false was both competent and relevant at the earlier trial either in proof of the libel or in relation to the credibility of the witness”.  

[5]        He submitted however that this statement did not mean that evidence in relation to credibility constitutes perjury notwithstanding the false evidence was irrelevant.  He drew a distinction between the position as described in Hume on Crimes Vol 1 page 368 and 369  and the practice of examination of witnesses in initialibus to determine their competence and submitted that Lord Emslie’s reference to credibility should be read as a reference to evidence in initialibus and not in causa.  Lord Emslie also considered Alison Criminal Law of Scotland Vol 1 page 469 but made no comment on the reference there to an unreported case Elizabeth Muir 1830.  It is said by Alison that the accused in that case, who gave evidence as a witness in exculpation, was convicted of perjury on a matter going to credibility when in her evidence she spoke to other matters “essential to the first prisoner’s defence”. Mr MacLeod asked me to place no reliance on this case due to the lack of detail.  The case of HMA v Brown 1843 1 Broun 525 was one in which the perjured evidence related to “the issue at the trial” viz a perjured explanation for the giving of false names by him and the accused at the original trial for theft. 

[6]        Mr MacLeod submitted that these cases showed that the false evidence given at the original trial had been relevant to an issue at the trial or to facts that may have had an influence on the decision or because it undermined the credibility of relevant evidence of other witnesses. 

[7]        In relation to the test of relevancy to be applied by this court to the false evidence set out in the charge in this case, he referred to the well-known full bench case of CJM v HMA 2013 SCCR 215 and to the judgement of the Lord Justice Clerk at paragraphs 28 to 30.  He submitted that the test was whether the evidence given by the accused in the original trial was in a reasonable sense pertinent and relevant and whether it had a reasonably direct bearing on the live issues at the original trial. 

[8]        It was accepted that one aspect of the accused’s evidence at the original trial was directed to a live issue and that was his identification of Mr Sheridan’s voice on the tape in which he admitted certain sexual practices which were the subject of the charge in the original trial.  However the false evidence alleged in this indictment did not relate to any live issues at the original trial or have a reasonably direct bearing on them.  The evidence said to be false was irrelevant and could not found a perjury charge. 

[9]        In relation to paragraph (a) which involves the accused knowledge of phone hacking by others and the payments therefor, there was no evidence of any phone hacking of Mr Sheridan’s phone and the Metropolitan police, after investigation, had found no such evidence.  The advocate depute in his speech at the original trial had emphasised that there was, in any event, no evidence of what would have been gained by hacking Mr Sheridan’s phone.  Mr Sheridan in his speech stated that the evidence of the accused was led not to advance the defence case but to raise: 

“other issues that have to be considered, not for you, but other issues…about conduct in public life, about power about who can do things and who can break the law and get away with it”. 

He said he risked his defence in citing the accused because he thought he had “a public service and a public duty to try and expose wrongdoing”.  That showed that the accused’s evidence was irrelevant in the original trial. 

[10]      In relation to paragraph (b) which involves the accused’s knowledge of payments to corrupt police officers by News of the World staff while editor,  there was no evidence at the original trial of payments to police officers concerned in the investigation of Mr Sheridan’s case or even that such a suggestion made.  The position Mr Sheridan adopted was that the investigation was unfair, biased against him and a waste of public funds.   The advocate depute in the original trial had pointed out that all the witnesses to whom that was put rejected the suggestions.  Mr Sheridan in his speech made no reference to corrupt payments.   This matter was not relevant to the live issues at the original trial. 

He made other points:

1. It is for the Crown to lead evidence to establish that the false evidence was relevant
2. Unlike other cases, the issue of relevance here is not clear cut or self-evident and the Crown therefore must shoulder the burden of demonstrating relevancy.The Crown had not discharged that burden.There is insufficient evidence to allow me properly to assess the relevance of the false evidence.
3. The matter of relevance is for me, not the trial judge at the original trial or the advocate depute there or Mr Sheridan.Mr Sheridan is not a witness in this case and there is no challenge to what he said about the accused’s evidence in his speech.
4. Mr Sheridan had made no reference to the McNeillage tape in that part of his speech dealing with the accused.
5. Had the trial judge or the advocate depute challenged the relevance of the questions which elicited the answers from the accused now said to be false and had Mr Sheridan indicated his purpose was as he had eventually described it in his speech, it was inconceivable that the questions would have been allowed.The advocate depute’s position on relevancy in the original trial and that of the advocate depute in this trial were wholly contradictory.
6. The lack of relevance is vouched by the failure by the Crown to challenge the defence Statement of Uncontroversial Evidence paragraph (iii) that the McNeillage tape is an authentic video of a conversation between Mr Sheridan and McNeillage on 18 November 2004. The 1^st joint minute paragraph 8 agrees that the Crown position at the original trial was that the McNeillage tape contained a recording of Mr Sheridan admitting to certain matters. There was no evidence that this tape was fabricated.Other witnesses from the News of the World had been called at the original trial who might have had some information to give about the tape, but there is no information available to me about that.No sufficient evidence had been advanced about the whole context in which the false evidence had been given.
7. The accused had been asked by Mr Sheridan about a notebook found in the possession of Glen Mulcaire on 8 August 2006 which contained 3 pages one of which had Mr Sheridan’s name, mobile number, address, the word “Voda”, the figures “121” and a date of 14.09.04.Although Mr Sheridan had suggested to the accused and in his speech to the jury that it also had a unique voicemail number and/or PIN number for Mr Sheridan’s voicemail, that was untrue (Joint Minute 2 paragraph 30).There was no evidence as to what was on the other pages.Mr MacLeod asked how this matter could be evaluated in the absence of further evidence. In any event, the available evidence in this case shows that the accused only knew of this sort of activity involving Goodman and Mulcaire over one year after the date on the notebook.
8. All this court had to go on to assess relevancy are the transcript of the accused’s evidence, speeches and the charge.The speeches both demonstrate that the evidence was irrelevant.

The submissions of the advocate depute
[11]      For the Crown, the advocate depute did not dispute the legal position was set out by Mr MacLeod except that it was apparent that he considered that matters of credibility were relevant in a charge of perjury.  He referred to the same cases as Mr MacLeod. He also referred to Gordon on Criminal Law at 47.15 (a passage dealing with competency not relevancy).  So far as the assessment of relevancy is concerned, he referred to CJM.  He did not offer submissions as to how the relevancy of evidence as to credibility should be assessed. 

[12]      According to the advocate depute there were two respects in which the false evidence of the accused was relevant.  These were, first, in relation to his credibility and second to “the jury’s consideration of the substantial facts at issue in the case”. 

[13]      No objection had been taken to the false evidence or any intervention by the trial judge.  Other matters were objected to. That was not decisive but of significance (Hall v HMA 1968 SLT 275 at 277).  This court would have to be of the opinion that in no possible way was the evidence of the accused relevant at the original trial. 

[14]      In relation to credibility, the relevance arose from the accused’s identification of Mr Sheridan on the McNeillage tape.  It was developed in cross-examination by the advocate depute and referred to in his speech (as “not irrelevant”).  He stated that the trial judge referred to the identification evidence of the accused in his charge at pages 30-32.  However, I note that there the trial judge makes reference only to the Crown evidence of identification at page 31 lines 5-7. On page 32 he instructs the jury to take all the points made about the identification into consideration.  The accused had given identification evidence which was in respect of a critical area in the original trial.  His credibility was in issue and the false evidence was “directly relevant to the assessment of his credibility”.

[15]      The advocate depute submitted that in the present case there was a close relationship between questions going to credit and questions going to the issue and referred to the opinion of Lord Clarke in CJM paragraph 50.  Nonetheless he submitted that the false evidence should be examined first in relation to credibility.  The accused, he said, would had to have admitted to conspiracy to hack phones or at least to knowing of phone hacking as editor of News of the World, sanctioning payments therefor and employing people who hacked phones to further the interests of his paper (paragraph (a) of the charge).  But he did not explain what link or connection there might be between the evidence of identification and these matters.  But he submitted it was relevant evidence in the original trial and constitutes perjury. 

[16]      The second ground was that Mr Sheridan was advancing in the trial a line in examination and cross examination that he was not the person in the McNeillage tape and that it had been concocted.  The News of the World was trying to destroy him and part of that was the purchase of the McNeillage tape.  In chief of the accused, Mr Sheridan asked about a notebook recovered from Mr Mulcaire whose company was employed by News of the World on an exclusive contract inter alia for phone hacking services.  That notebook on three of its pages contained some details of Mr Sheridan and in particular, his name, address, the date 14 September 2004, his mobile number the words “Voda” and “Greg”.  Although it was suggested to the accused by Mr Sheridan that it also showed the unique voicemail number and/or PIN for Mr Sheridan’s voicemail, it is agreed that that was incorrect (2^nd joint minute paragraph 30).  A signature which may have been “Greg” appeared on it. Evidence at this trial showed that Greg Miskiw had been an employee of News of the World at the relevant time and Mr Mulcaire was introduced to the News of the World by him.  I do not know, however, whether that evidence was led at the original trial.

[17]      It was suggested by Mr Sheridan in his speech to the jury that private investigators had supplied the accused with recordings of Mr Sheridan’s voice.  At page 135-136 of defence production 1 he suggested that the News of the World was involved in a concerted action to undermine him politically and to try and break his relationship with his wife.  He suggested that the accused embarked on illegal activities, including ordering his phone to be hacked and the “concoction of video tapes in order to do me in”.  Had the accused told the truth in the respects set out in the charge, which took place between 2002-2006 (the News of the World story was published in 2004) when the accused was depute and then editor, that would have been relevant to the issue in the trial.  There was a link in time and the person with Mr Sheridan’s details in his notebook Mr Mulcaire (who the accused denied knowing) was a convicted phone hacker.  The notes indicated that Mr Sheridan was a “potential victim” of phone hacking according to the evidence of DCI McCabe who gave evidence at the current trial because the notebook contained those details.  He said that if the notes had included the PIN the police would have classified the person concerned as a “likely victim”. 

[18]      In his speech Mr Sheridan said that the News of the World was at the heart of the case, the McNeillage tape was theirs which they published and they approached the police with witnesses and evidence against him.  Mr McNeillage and the tape’s provenance were criticised when he said to the jury the date when it was made was “unknown” and the fact that no voice expert had been called was highlighted.  He said that four Crown witnesses had said it was him and nine witnesses had said it was not him.  He also said “I’ve suggested it’s (the voice on the tape) an actor I’ve suggested it’s a mimic” and there were no details of the “independent verification” of the tape spoken to by the accused.  He suggested that he was entitled to suggest that his phone “might have been getting interfered with” although he also said that was not important “for the majority of the details of this case” but it highlighted “the lengths that the News of the World are willing to go to try and do someone in.  They will break the law, of course, and yet Andy comes along and denies everything”. 

[19]      Mr Sheridan was asking questions on the basis that the News of the World had conspired against him and that Mr Mulcaire had hacked his phone on its behalf. His submissions were to that effect.  Accordingly, the false evidence was relevant. 

[20]      In response to that, Mr MacLeod pointed out that the advocate depute at the original trial told the jury that he was not going to say much about the “propositions advanced so far as phone hacking concerned because there is no evidence of illegal interception of Mr Sheridan’s phone”.  He told them that the fact that details were found in Mr Mulcaire’s notebook was said by DCI Williams not to be surprising since Mr Sheridan was a person with a public profile. The fact that his details were in that notebook was not evidence of interception.  DCI Williams had said that there was no evidence of interception.  The flaw in the proposition was that there was no evidence that any of the information in the McNeillage tape or elsewhere was contained on any voicemail message on Mr Sheridan’s phone.  No witness had said they left a message on the phone which could be used and there was no other source of evidence to say that there was such a message left.  Even if there had been evidence of interception, there was no evidence of what would have been gained.  Thus this proposition, which had occupied a great deal of time in the trial, came to nothing in terms of evidence (production 96 pages 91-93).

[21]      There was no evidence of a News of the World conspiracy against him.  No evidence that the tape was fabricated by anyone, far less the News of the World.  It was important to distinguish between lines of examination and evidence.  What Mr Sheridan had done was to ask questions about a host of irrelevant topics and used the identification by the accused as a ruse to justify embarking on them.  The real reason he called the accused was set out in Mr Sheridan’s speech when he told the jury that he called the accused because he thought he had “a public and a public service to try and expose wrongdoing”.  Mr Sheridan illustrated that by saying that Mr Mulcaire’s notebook had his details in it (although he misled the jury as to the PIN).  He was a convicted hacker in the paid service of the News of the World and that entitled Mr Sheridan to suggest that his phone may have been getting interfered with.  That showed the lengths the News of the World go to do someone in. Mr Sheridan said that was why he brought the accused to give evidence. 

[22]      But Mr MacLeod’s primary submission was that the court could not undertake an assessment of the relevance of the evidence with the materials provided which were insufficient. The Crown ought to have prepared an assessment of the relevance which could have included a report or affidavit from the trial judge.

Discussion and decision

[23]      I must decide the matter of relevancy on the basis of the material which the Crown has chosen to place before me.  As Mr MacLeod submitted, it may be that other material might have been made available but I cannot speculate on what that might have been.  There was no dispute in relation to the applicable law on perjury apart from the matter relating to credibility raised by Mr MacLeod.  No dispute arose in relation to the correct test of relevancy.    Usually, the matter of relevancy will not be an issue as it would be self-evident or, as in Hall v HMA, a report of the judge at the original trial on the matter of admissibility will be available.  There is no such information here.  No objection was taken to the questions which elicited the false evidence and the trial judge did not require to rule on this matter.  I therefore need to put myself in the place of the trial judge at the original trial and require not only to consider what might have been said in support of the objection but also what might have been said against it and come to a view on those issues.  This is unusual, if not unique.  No case was cited to me in which this has been done.  It raises the sort of logical difficulties to which Lord Justice General Emslie may have been referring in the context of a jury in a perjury trial having to decide on the materiality of evidence given at the original trial (see page 143 of Lord Advocate’s Reference of 1985). 

[24]      Mr MacLeod’s primary submission was that no sufficient evidence had been placed before me by the Crown who shouldered the burden and I should not even try to assess relevance.   Although an attractive submission, I cannot accede to it.  The matter of relevance is one of law for me and I have to examine the material provided in order to decide the matter, however artificial that might be.

[25]      I proceed on the basis of the opinion of Lord Justice General Emslie that it is necessary that the allegedly false evidence is both competent and relevant at the original trial either in proof of the libel or in relation to the credibility of the witness (page 145).  I do not accept Mr MacLeod’s submission that evidence in relation to credibility cannot found a charge of perjury if the false evidence was irrelevant.  I consider that if the witness gave relevant evidence in causa he can be guilty of perjury even if the perjured evidence related only to his credibility.  That appears to be what happened in the case of Elizabeth Muir quoted in Alison page 469.  It is also in line with the passages in Macdonald quoted by Lord Justice General Emslie at page 144 of the Lord Advocate’s Reference. 

[26]      I also take as the test for relevancy that set out in paragraph 28 of CJM.  Evidence is relevant if it bears directly on a fact in issue or indirectly because it relates to a fact which makes a fact in issue more or less probable.  Relevancy depends on its context and the degree of connection between what is sought to be proved or disproved and the facts libelled.  As Mr Justice Dickson said in De Graat v The Queen 1982 2 SCR 819 at 835-835 (referred to by Lord Carloway in CJM):

“To resolve the question before the Court, I would like to return to broad principles.  Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant.  This is a matter of applying logic and experience to the circumstances of the particular case.  The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.”

[27]      According to Macdonald, the evidence must be “pertinent either to the matter in issue or pertinent to the question of the party’s own qualification to make the oath or credibility in making it”.  It appears therefore that for evidence relating to credibility to be relevant in a charge of perjury, there requires to be a connection or link between the evidence said to go to credibility and the facts in issue spoken to by the witness. 

[28]      This accords with the principles set out in CJM that evidence of collateral matters is irrelevant as not assisting the resolution of the facts in issue as are matters which do not have a reasonably direct bearing on the subject matter under investigation and “fall to be rejected as being too indirect or too remote” (CJM paragraph 28 and Bark v Scott 1954 SC 76).  If evidence might affect the weight to be attached to evidence which does not bear direct relevance to the facts, it might be considered relevant (Phipson on Evidence 17^th Ed. paragraph 7-04).  But as the Lord Justice Clerk stated at paragraph 29 these situations are strictly regulated.

[29]      The advocate depute accepted that it is not every detail relating to credibility asked of a witness which can found a charge of perjury and some will be too remote or indirect to be regarded as relevant.  I bear in mind that juries are told routinely that they can pick and choose within the evidence of a witness and that because a witness may be thought to have lied about one matter does not mean he had lied about another.  Of course, in this case, that appears to be the position of the Crown who do not suggest the accused was lying in his identification of Mr Sheridan. 

[30]      That evidence of identification was plainly directed at a matter in issue. It is opinion evidence and usually depends more on reliability than on credibility.  The question is whether I can be satisfied from the material presented to me that the false evidence, in a reasonable sense, directly bore upon the assessment of the accused’s credibility and made the identification of Mr Sheridan’s voice on the video (a fact in issue) more or less probable and thus capable of impacting upon proof of the libel in the original trial.  

[31]      Credibility is an issue in respect of all witnesses to a greater or lesser degree.  A jury may not be able to divine, from seeing and hearing him, that a witness is lying about a particular matter and will naturally require evidence that he was.  An accused is entitled to lead evidence to expose relevant perjured evidence, if it is available from the witnesses cited in the cause.  But that right is subject to the common law limitations set out in CJM.  Had the questions which elicited the perjured evidence been objected to, Mr Sheridan would have been required to justify the leading of the evidence of the sort led in the indictment before me.  It may have appeared to the jury to be implausible that the accused did not know of these matters but that, it could have been argued, would not of itself be enough to justify the jury finding his evidence incredible. If there was evidence available which could show he was lying and that evidence was relevant and competent then he ought to have been allowed to lead it.  But before allowing it, the trial judge would have to be satisfied that such evidence was relevant.  The proposal would have involved, so far as I can see, embarking on what was in effect a perjury trial within a perjury trial so that Mr Sheridan could lead evidence from whatever witnesses had been cited to demonstrate that the accused was lying about the matters in this indictment. 

[32]      The point of the evidence would be to demonstrate that the accused had lied and therefore his identification evidence was incredible.  Since the original trial was a perjury trial, the raising of this issue by the leading of evidence about the false evidence would have been a major diversion from the issues which faced the jury at that trial and would have been open to many, if not all, of the criticisms set out in CJM and, in particular, the risk of confusing the jury as to what the real issues were and taking up of the time of the court.  The trial judge would have needed a compelling reason to be satisfied that the proposed evidence was relevant and that it “may conceivably affect the weight to be attached to testimony” (CJM paragraph 29). 

[33]      The first matter is whether it would have been sufficient to say that the allegedly perjured evidence went to the accused’s credibility without specifying why it did so.  Even liars can make reliable identifications.  Juries can pick and choose amongst the evidence of a witness. Evidence of bad character is in general inadmissible precisely because it is collateral to the issues defined in the libel (CJM paragraph 29 and the sources there referred to).  Unless there was some reason to think his credibility was in issue in respect of his identification, merely to say it was a matter of credibility would not be sufficient.  To show that the witness had told any lie would not be a relevant exercise.  If, however, it could be shown that he had a reason to lie about the identification of Mr Sheridan then that would become potentially relevant.  It is not the fact that he may have lied which is decisive of relevance. I do not consider that any ground could have been advanced to show that there was a basis for departing from the general rule that evidence of bad character is inadmissible. 

[34]      I consider that the false evidence would only become potentially relevant if it was capable of rendering the identification evidence doubtful or wrong in the minds of the jury.  General credibility is not enough. I do not consider the Crown’s first ground well founded. 

[35]      What, then, of the facts about which the accused is said to have lied?  The fact that the accused was a former editor of the News of the World at the time of the events in question was a relevant and collateral fact.  As such, it could have been said that he had an interest in saying that Mr Sheridan’s voice was heard in the video and that the “fleeting glimpse” of a person was him.  The News of the World had lost a defamation action against Mr Sheridan and the paper had strong interest in showing he had lied during that action.  The accused was not, at the time of the trial, an employee but still could be said to have a personal or indirect interest.  But the jury was aware that he had been editor at the time and thus could bring that factor to bear in assessing the credibility of the identification evidence he gave.

[36]      The second ground calls for an examination of the components of the false evidence and their potential for putting the credibility of the identification evidence in doubt.  The first group of these in paragraph (a) of the indictment is the accused’s knowledge of phone hacking by or on behalf of the News of the World of people other than the accused, his knowledge of Mr Mulcaire and payments to his company for phone hacking.  I heard evidence from Mr Goodman, an employee of the News of the World at the same time as the accused, that Mr Mulcaire hacked the phones of people in order to get information about members of the Royal Family and a former Home Secretary.  That evidence of itself would not be relevant to the issue of the credibility of the identification.  Just because the accused knew of phone hacking activities in general would not be a good reason to disbelieve his identification.  It yields no legitimate inference that the accused might have had a reason to lie about that. 

[37]      It might yield such an inference, however, if some connection between those phone hacking activities and Mr Sheridan himself could be established by the available evidence.  However, it is agreed in this trial that there was no evidence at the original trial that Mr Sheridan’s phone was hacked and that DCI Williams, who was called by Mr Sheridan, told the jury that the Metropolitan Police after investigation found no such evidence (2^nd joint minute paragraph 29).  All that could be demonstrated was that some of Mr Sheridan’s details were in the notebook of Mr Mulcaire (see point 7 of Mr MacLeod’s submissions above).  Mr Sheridan had asked the accused about that at the original trial.  However, Mr Mulcaire was ill at the time of the original trial and a soul and conscience certificate was referred to by Mr Sheridan in his speech (see page 165 of defence production 1 the transcript of Mr Sheridan’s speech) and thus did not give evidence. It is not clear to me how Mr Mulcaire’s evidence of the notebook and the meaning and significance of the entries referred to during the evidence of the accused, could have been otherwise proved.

[38]      An application under section 259 of the 1995 Act could have been made but I know of no such application and I do not know how any relevant evidence could have been produced thereby or what length of time would have been necessary for the production of evidence in that way at the time of the trial or during its course.  Delay would have been an important factor for the trial judge.  Nor do I know anything at all about what Mr Mulcaire might, could or would have said beyond the fact that he was convicted of phone hacking along with Mr Goodman whose evidence I did hear.  In particular I do not know whether he could give admissible evidence about the accused’s knowledge of the false evidence.  No police or other statements from him have been referred to in this trial which might have accompanied a section 259 application at the original trial.   I do not know whether Mr Goodman was cited as a witness at the original trial.  I cannot find his name on the indictment for the original trial (production 1) or in the minutes of proceedings of the original trial (production 4 which were not referred to in the course of evidence in this trial) as having been called as a witness.  That is also the position for Mr Thurlbeck and Mr Weatherup, both former employees of the News of the World who gave evidence before me and spoke to the accused’s knowledge in various parts of the libel. 

[39]      The jury knew that Mr Mulcaire and Mr Goodman had been convicted of crimes of phone hacking.  Mr Sheridan in his speech could only say that he was entitled to suggest that his phone “may have been getting interfered with” (page 167 of defence production 1).  That was in the context of highlighting the lengths that “the News of the World are prepared to go to try and do someone in”.  Mr Sheridan did not go into the witness box to give evidence on his own behalf.  He did not give evidence before me.   

[40]      But in addition, some explanation would have to be given by Mr Sheridan, at a debate on the objection to the false evidence, as to how the hacking of his phone could have had any connection with the video and the “proposition” being put by Mr Sheridan that it was fabricated.  The advocate depute at the original trial submitted that no evidence had been led to show what would have been gained from hacking Mr Sheridan’s mobile phone (production 96 page 93).  No evidence showing that anything would have been gained, far less anything that might have led to the video being shown to be fabricated, has been led before me.

[41]      The accused pointed out to Mr Sheridan in the course of his evidence at the original trial that recordings of Mr Sheridan’s voice were widely available and that the paper did not have to go very far to find examples for the purpose of verifying the tape.  In any event as Mr MacLeod pointed out, it would only be necessary to call Mr Sheridan’s mobile to get a recording of his voice as opposed to hacking into his messages.  I do not know if, as a matter of fact, Mr Sheridan’s voice was on that message service anyway.   DCI Williams told the jury at the original trial that it was not unusual for the details of people in the eye to be in the hands of the media and thus the presence of Mr Sheridan’s details in Mr Mulcaire’s Notebook is of little, if any, significance.  Mr MacLeod pointed out that the evidence of DCI McCabe, who was a witness in this trial, was not a witness at the original trial.  I accept there is a real risk of “cross-fertilisation” of evidence between the trials if caution is not exercised.

[42]      DCI McCabe told me that Mr Mulcaire’s Notebook had about 8000 pages which contained “taskings” of what he was asked to do.  Some of these related to phone hacking of individuals.  Many thousands of names appeared.  If a mobile number appeared adjacent to a name, the police would categorise that as a potential victim and if there appeared in addition the PIN the person would be categorised as a “likely victim”.  The jury at the original trial therefore did not have this evidence from that witness and I have no transcript of the evidence of DCI Williams at the original trial. 

[43]      The proposition was also put by Mr Sheridan in putting questions to the accused that the video was fabricated by the News of the World which, if capable of being established by evidence, would be highly relevant.  He was suggesting that the News of the World and the accused, among others, were part of an attempt to pervert the course of justice by the fabrication of evidence to convict Mr Sheridan of perjury.  But a proposition was all that this amounted to.  He said in his speech at page 81 of defence production 1 that “I’ve suggested it’s (his voice on the McNeillage tape) an actor” and “I’m saying it’s an actor or a mimic”.  I do not know whether he made that suggestion at the original trial to any witness or, if he did, what response he got since I have no transcripts of the evidence apart from that of the accused.  Mr Sheridan did not give evidence.  There was no evidence that the tape was fabricated.  It is agreed that it is accurate.  The Crown’s position is that it was genuine and that the accused gave accurate evidence that is was Mr Sheridan’ voice.  So far as the evidence in this case is concerned, there was no evidence available at the time of the original trial, whether through witnesses cited or documentation lodged as productions, which was in any way capable of showing such fabrication had or even might have taken place. 

[44]      To show that the accused had lied about the matters in this indictment would not have assisted in establishing that Mr Sheridan’s phone had been hacked and would have had no evidential value upon the issue of the credibility of the identification at the original trial.  Nor would it have assisted in establishing fabrication of the video.  In my view the false evidence was irrelevant and an objection to its admissibility would have had to be sustained by the trial judge.  It would have wasted the court’s time in what was a long trial and would have confused the jury.  This applies to the matters set out in paragraph (a) and (b).  If anything, knowledge of payments to corrupt police officers is even further removed from any possible bearing on any fact in issue and I understood that the advocate depute accepted that it could only fall under his first ground. 

[45]      If I am wrong about this and there was a way that the false evidence could conceivably affect the weight to be attached to the identification evidence which could have had a bearing on the live issues in the original trial in the respects which the advocate depute has argued before me, the trial judge would have been able to say whether he would have allowed the questioning on that basis.  I have dealt with the bases upon which this advocate depute supposes that Mr Sheridan could have argued against the objection of the advocate depute at the original trial.  Paradoxically the advocate depute has had to act in the shoes of Mr Sheridan and Mr MacLeod in the shoes of the advocate depute at the original trial.  I have had to consider the submission of both sides from the perspective of the trial judge.   It is possible that the original trial judge would not have come to the same decision.  If so, I do not know what his reasons would have been. Mr MacLeod is equally in the dark.  We cannot comment on them.

[46]      It is possible too that the advocate depute has been unable to conceive of a point of subtlety and guile which Mr Sheridan could have made at the original trial, to which the advocate depute at the original trial could not find an answer and which would have caused the trial judge then to allow the questioning to proceed.  But the Crown have had ample opportunity to consider this matter.  Mr Sheridan could have been asked and the trial advocate depute could have responded.  The original trial judge could have given a view on that matter. 

[47]      The advocate depute argued that something could be taken from the fact that the advocate depute at the original trial had not objected to the line of questioning which elicited the false evidence and, by implication, it must have been relevant.  He objected to other lines.  But it may also be that the advocate depute at the original trial simply did not want to keep on objecting to irrelevant questions to avoid a perception of bullying and the flow of the trial being constantly interrupted.  That would be perfectly understandable especially with an unrepresented accused who could, in fairness, be expected to be granted a degree of leeway.  Sometimes it is only possible to limit diversionary tactics by the defence and not to eliminate them.

[48]      Whatever that reason might have been, the trial judge would still have been required to carry out an assessment of the type described by Lord Sands in Moorov v HMA at page 87 and quoted in CJM at paragraph 31.   He would have had to have some reasonably accurate estimate of how long it all might take and make his own assessment of the probative value of the proposed evidence in the whole context of the evidence at the trial up to that point.  I do not know what evidence Mr Sheridan might have led and thus how long it might have taken.   Mr Goodman’s evidence spanned three days in this trial.   I cannot make that assessment for the trial judge at this stage.  I have been given no transcript of the evidence apart from that of the accused.  The accused came as a defence witness on 9 December 2010 during the defence case when the evidence at the trial had started on 4 October.  I have not counted up the number of witnesses called up to that point but it was considerable.  I have no idea what evidence they gave.  The joint minutes in this case are very helpful insofar as they go but do not advance my understanding of the dynamics of the trial in December in any meaningful way.  It is impossible for me to second guess the trial judge in this respect.  Only the trial judge could have told me what his assessment would have been. 

[49]      He would also have had to consider the amount of time which had elapsed between the events, about which the accused and any witnesses led were being asked by Mr Sheridan, and the original trial.  Those events may have occurred more than five years prior to the original trial and that would have been a factor to which he would have been bound to have regard. 

[50]      He would have had to weigh up any conceivable weight which the jury could attach to proof that the accused had lied in the respects set out. I do not know what he would have thought about that and only the trial judge himself could tell me.  No information from him has been provided. 

[51]      This raises an aspect of Mr MacLeod’s primary submission which was that I should not even attempt this exercise.  He said that the Crown ought to have prepared an assessment of the relevance which could have included a report or affidavit from the trial judge. 

[52]      The case of Hall v HMA was concerned with the perjury trial of a Crown witness who had given evidence at the original trial.  The judge at the original trial ruled that the statement was not a precognition and admitted the evidence.  At the perjury trial, objection was taken to the statement on the same ground.  The trial judge at that trial repelled the objection and heard evidence of the circumstances in which the statement was made which presumably was the same evidence which the original trial judge had heard.  The perjury judge adopted the same course as the original trial judge and refused to hold that the statement was a precognition. A conviction for perjury resulted.  On appeal Lord Justice Clerk Grant said

“To my mind the crux of the matter is whether Lord Avonside was right in admitting the evidence in question at the earlier trial to which the applicant was not a party.  I must say that I would need strong reasons for interfering in a case like this with the decision made, on a question of competency of evidence, by a judge in a trial on an indictment not before us in the present case.” 

[53]      He goes on to say that it was unnecessary to decide whether Lord Morison did or did not go too far in Angus v HMA 1935 JC 1 at 6 when he said that is was “quite impossible for one judge at a trial for perjury to review the decision of another judge on the admissibility of evidence which he has allowed in a trial before him”.  He went on to say:

“I am satisfied that it is only for the most exceptional reasons that the presiding judge at the perjury trial (and indeed this Court in an appeal in which that presiding judge’s decision on admissibility is attacked) should review the decision of the judge at the trial at which the perjury is alleged to have taken place on the question of the admissibility at that earlier trial of evidence which is part of the subject matter of the charge of perjury”

[54]      The original trial judge’s decision was thus of great importance which would only be departed from for the most exceptional reasons.  Here, of course, there was no objection to the relevancy of the false evidence and therefore no decision was given by the original trial judge.  However, it seems to me that, at the very least, the Crown could have requested a report from that judge on this matter as soon as possible after a decision to investigate this matter was taken which would have been persuasive. It is not to be assumed that the trial judge would refuse such a request and the original trial materials could have been assembled for him together with his notes or a transcript of the evidence.  The defence could have made submissions to me about it.  I have been referred to no reports of the original judge’s views on any matters in the trial. I only have his charge. The advocate depute mentioned to me that he had recently received information about a report from the original trial judge of which he had a copy but conceded that it would not be appropriate for me to be given it since it was not a production in this case.  I think that concession to have been fairly and properly made. 

[55]      While I consider that I must take a view on the issues raised before me on the available material insofar as I know that it would have been available to the trial judge, these are at least some of the areas where I am unable to put myself in the trial judge’s position as it stood on 9 and 10 December 2010.  Accordingly, my assessment of relevance is inevitably a limited one.  But such an exercise is necessary.  It may reveal  limitations.  If it is limited in a material way, as I consider it to be, the submission that the false evidence in the indictment cannot found a charge of perjury falls to be sustained since the Crown, as Mr MacLeod submitted, would have failed to discharge the burden upon it. 

[56]      Although not decisive, the views of Mr Sheridan himself, albeit not a qualified lawyer, provide some insight into what might have been said by him at this fictional objection to relevancy from the advocate depute at the original trial which I have endeavoured to conjure up.  In his speech at page 164 of defence production 1 and close to its peroration, he acknowledged that the jury might have thought the evidence of the accused to have been irrelevant.  Despite his inexperience in these courts he was conscious of the fact that it was “very, very, very rare that the defence will ever cite a witness who might damage him, that might not support his case”.  He went on to explain that other issues had to be considered, not however by the jury, about conduct in public life, power, who can do things and who can break the law and get away with it.  He told them he had a public duty to try to expose wrongdoing and to highlight the lengths that the News of the World were willing to go to “do him in”.  Mr MacLeod was correct, I suspect, that if Mr Sheridan had said that in answer to the advocate depute’s objection, the trial judge would not have allowed it.  I do acknowledge, however, that what Mr Sheridan might have said at that stage might not have been on quite the same lines as his speech. 

[57]      For the reasons given above I consider that the false evidence alleged in this indictment was not relevant evidence at the original trial and the charge of perjury in the indictment is irrelevant.

[58]      Mr MacLeod also advanced a submission of no case to answer in respect of various sub-paragraphs of the charge.  The advocate depute conceded that paragraph (ix) was uncorroborated.  I have concluded that paragraph (viii) is also uncorroborated.  I sustain that submission to that extent.  I will give my reasons for doing so in due course.