2 June 2012

Coulson: crossing the Rubicon...

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

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

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

1. Allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan.

2. Allegations that, in respect of persons resident in Scotland, there are breaches of data protection legislation or other offences in relation to unlawful access to personal data.

3. Alleged offences determined from material held by the Metropolitan Police in respect of 'phone hacking' (Contraventions of the Regulation of Investigatory Powers Act 2000) and breaches of data protection legislation in Scotland.

4. Alleged instances of police corruption linked to items 2 and 3 above, in respect of the unlawful provision of information or other personal data to journalists or persons acting on their behalf.

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

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

A "source" is further quoted, suggesting that:

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

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

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

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

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

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

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

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


  1. Perhaps I'm wrong, but I thought that Sheridan's mobile-phone records were used to partly corroborate the validity of the George McNeilage face-less video of Sheridan's 'confession'. Because it was shown that Sheridan had made phone calls immediately before and after the times shown on the video, this was considered to be evidence that the tape was genuine. If the tape's compiler had access to Sheridan's phone conversations, then the times could had been slotted in, assuming such forgery had taken place.
    This would, of course, make Coulson's evidence more relevent than mint ice-cream.

  2. The Crown summing up - copied from The Sheridan Trial blog.
    'Mr Prentice examined the defence proposition that the film was actually made in 2006, and recalled the evidence of William Moore who, although at one point had said the film was made in 2006, if the jury looked closely at Mr Moore's evidence he had also stated he had seen the tape in 2004, as also mentioned in Mr Moore's statement to the police. Mr Prentice also pointed to the denial by “Tommy” on the tape of the Fiona McGuire story, then to the next call Mr Sheridan made on his phone at 20:44:17. Mr Prentice put it to the jury that the News of the World would have got “incredibly lucky” to fit the film into this gap between Mr Sheridan's use of his phone, and that while it may be suggested to them that the NoW had combed through Mr Sheridan's phone records for such a gap, this had not been suggested to any witnesses.'
    I'm sure there were other references to Sheridan's mobile phone calls, before and after the alleged times of the tape's recording, which formed part of the evidence, but I haven't got time to find them at the moment.

  3. An underexamined part of the problem in England was the Crown Prosecution Service refusing to prosecute any more than specimen cases of abuse of personal data by public officials.

    Scotland has distinct prosecutorial authorities; what were they up to? Had they been captured as CPS seems to have been?