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Last Updated: Friday, 4 August 2006, 17:13 GMT 18:13 UK
Sheridan case 'a tour de force'
By Alistair Bonnington
BBC Scotland solicitor

Gail and Tommy Sheridan
Tommy Sheridan had the solid backing of his wife Gail
Tommy Sheridan's successful libel action against The News of the World has put the spotlight on the conduct of libel cases in the Court of Session, Scotland's highest civil court.

Unusually for Scots law, this case has gone before a jury.

Although Scottish defamation actions can go before a jury, normally they are heard by a judge alone.

In Scotland, like England, a civil jury is composed of 12 people and a majority of seven is sufficient for a verdict in favour of either party.

In this particular case, one of the 12 jurors was excused because of a holiday commitment but that did not alter the need for at least seven jurors to be in favour of a verdict.

We are not allowed to know the details of the jury's voting in this case.

The jury's task in a defamation action is to decide "issues" which are put to them by the court.

Essentially, issues are concise statements of the specific questions to be decided by the jury. In the Sheridan case, there were four issues, covering the following questions:

  • Had the News of the World proved that Tommy Sheridan committed adultery?
  • Had it proved that Tommy Sheridan took part in sex orgies at swingers' clubs?
  • Was the paper correct in saying he had taken cocaine?
  • Were claims that he drank champagne also fact?

As these questions show, the onus of proof in the case was on the newspaper.

The newspaper was defending itself by trying to prove that its story about Mr Sheridan was true. In Scotland, this is called a plea of veritas, while in England the term justification is used.

The standard of proof is the balance of probabilities. So, had the jury been satisfied on the balance of probabilities that the News of the World stories were substantially true, then they would have been bound to find in favour of the newspaper.

The judge, Lord Turnbull, directed them that, if they believed any one of the newspapers' 18 witnesses, that would be enough to make them give a verdict to the News of the World.

The attempt by the News of the World's QC to have the case removed from the jury after the evidence was led was surprising

As in England, the damages to be awarded to the successful pursuer were a matter for the jury.

In Scotland, only compensatory damages are allowed. Punitive damages are not competent.

So the jury felt that the full 200,000 claimed by Mr Sheridan was needed to compensate him.

Traditionally, Scottish courts have awarded lower sums by way of defamation damages than English courts, although recently, at the same time as English courts have been striving to reduce high libel awards, awards in Scotland have been increasing.

The attempt by the News of the World's QC to have the case removed from the jury after the evidence was led was surprising.

The case, depending as it did on which witnesses the jury found to be credible and reliable, was a classic sort of litigation to be decided by a jury.

An unusual aspect of the case was that, after nine days of evidence, Mr Sheridan sacked his lawyers.

Mr Sheridan had been represented by Richard Keen QC, who is regarded as one of the most able senior counsel in Scotland.

Michael Jones
Mike Jones conducted a lengthy analysis of the evidence

However, at the relevant time, Mr Keen had to attend a hearing in the House of Lords in London, leaving his junior counsel to conduct Mr Sheridan's case.

That junior counsel cross-examined one of the News of the World witnesses by alleging that she had a conviction in a criminal court for fraud and had served time in prison for that matter. This was quite wrong.

Mr Sheridan became very agitated at this error on behalf of his lawyers and decided to sack them and represent himself from that point onwards.

Observers of the case from say Mr Sheridan has made an excellent job of representing himself.

Some may think there were echoes of the Jeffrey Archer case when Mr Sheridan's wife, Gail, an air stewardess, gave evidence. She made it clear that she supported and trusted her husband.

It cannot be denied that it will be somewhat embarrassing for the Faculty of Advocates to have watched one of their top QCs sacked by Mr Sheridan, who then went on to beat another leading QC in this trial.

She had been constantly at his side in attending court and the jury have been presented with a picture of a happily married couple who enjoy each other's trust and friendship.

Mr Sheridan's speech to the jury, lasting some 85 minutes, has been described by observers as a "tour de force". It was an impassioned and powerful plea - an exceptionally fine piece of oratory.

Mike Jones, QC for the newspaper, used a completely different technique. He spoke to the jury over two days for a period of six hours, laboriously going through the evidence which had been called by the newspaper.

It cannot be denied that it will be somewhat embarrassing for the Faculty of Advocates to have watched one of their top QCs sacked by Mr Sheridan, who then went on to beat another leading QC in this trial. But any lawyer in a case of this sort can only be as good as the quality of his witnesses.

Although the jury's verdict appears to mean that they believe they were lied to by the newspapers' witnesses, it should be remembered that, because the onus in a defamation case is on the newspaper, it could be that the jury did not know whom to believe.

For that reason, there will be no perjury prosecutions arising out of this civil trial.

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