In These New Times

Firm Magazine

3rd January, 2011

Former criminal practitioner and Scots law elder statesman Ian Hamilton QC warns that the reliance by the Crown of paid witnesses in the Sheridan prosecution raises troubling implications for the integrity of Scots justice.

Is using paid witnesses to a crime to become a feature of the administration of Scottish Criminal Justice? They have never been used before. Are newspapers now permitted to investigate crime as well as the police?

When the News of the World heard that a video record of an alleged confession existed their duty was immediately to report this to the police. The police would then get a warrant to search the haver’s* house. That is the usual method. It is the method the police used to search the Sheridan house, although they found nothing.

Why did Coulson, the Editor of The News of the World, come from London to interview and pay a potential crown witness for a video recording? This is contrary to proper criminal procedure. Purchase of witnesses has no place in Scots law. Indeed payment by the Americans of witnesses in the Magrahi case is one of the things that make many people think the conviction is unsafe. Why did Coulson hand over £200,000 when the police could have got the same evidence for nothing? Either the recording was evidence or it was not evidence and, if it was fabricated, no amount of money could make it sweet.

The admissibility of evidence bought by a third party and handed to the Lord Advocate to be used in criminal proceedings was not, I think, argued in court. I do not know if Mr Sheridan will appeal. So far he has not done so. I tell you this. As a criminal lawyer of many years experience such a happening sticks in my craw. So many questions occur to me.

Was the money given to the haver before he gave evidence? Were any conditions attached to the giving of the money? If so what were they? Is it true that the haver was sent on holiday by The News of the World? If so why? Was this to keep him from being interviewed by the defence or their experts?

Now that The News of the World is calling for the prosecution of all the Sheridan defence witnesses it looks as though Rupert Murdoch is using our Scottish criminal law as his own personal weapon. He is probably richer than the Scottish state so he can afford to. I write these words in fear. If he were to use the law against me, as it was used against Tommy Sheridan, it would break me as it has broken him. I am a weak citizen and all the law in the land will not save me.

There are so many more questions.

What other part, if any, did this newspaper play in this prosecution? Were they given a copy of the indictment containing the list of crown witnesses? What other witnesses were interviewed by The News of the World and why? Who were paid, how much, and what for?

In High Court cases all witnesses are seen and precognosed by the Crown Office staff. The questions I pose would have been asked of all the witnesses. Records of these interviews lie in the Crown Office. They must now be published. Video records of the police interview of Mr Sheridan were published; so also can Crown Office records. The public interest demands it.

Never in the history of Scots law has the crown adduced witnesses who have been paid, or promised payment, by a third party in connection with their evidence. Why were they adduced in this case? The Lord Advocate must explain why.

In using at least one paid witness who had first been seen and paid, or promised payment, the Lord Advocate may have been guilty of malpractice in public office. She may have an answer that we should all hear. (One of the great ironies in this case is that no one would dare make the same accusation against Rupert Murdoch. Just think why.)

This case smells of injustice. It will not be sweetened by making the Lord Advocate a judge.

Ian Hamilton QC

*The word ‘haver’ is used in Scots Law to denote the holder of a piece of evidence that may be useful in a current litigation.