Note recording Lord Bracadale’s reasons for repelling Thomas and Gail Sheridan’s pleas in bar of trial at their trial for perjury.  The Sheridans had argued that the trial would breach their right to a fair trial in terms of Article 6 of the European Convention of Human Rights contending that the pre-trial publicity meant that the trial could not be before an impartial tribunal. In particular they argued that:

1. prejudicial material remained accessible at the time of the trial;
2. some of the material purported to emanate from police sources; and
3. the Crown had failed to take adequate steps to render the prejudicial material inaccessible.

Lord Bracadale applied the test[1] for prejudicial pre-trail publicity set out in Stuurman v HMA (1980) and had regard to observations made in Montgomery v HMA (2001) to the effect that the Stuurman test took account of:

a)     the length of time since publication;
b)    the focusing effect of listening to evidence over a prolonged period; and
c)     the likely effect of the directions by the trial judge.

Was there pre-trial publicity?
The first question was whether there had in fact been pre-trail publicity.  Having been presented with 13 lever arch files of material and a report of material available on the internet, Lord Bracadale unsurprisingly accepted that there had been pre-trial publicity.  Although it was highly improbable that any potential juror would have read all of it, and there was therefore a danger of overestimating the impact of the material on any particular juror, it was likely that some of the jurors would have encountered some of the prejudicial material.

Could the effect of the pre-trial publicity be removed?
The passage of time
Lord Bracadale noted that there had been significant time between publication of most of the prejudicial material (in 2006 following the defamation verdict) and the perjury trial due to take place in 2010. However, there had been publications in the intervening period which harked back to and rehearsed the earlier prejudicial material.  Additional allegations had also been made in the intervening period in relation to interfering with witnesses and evidence. Moreover, much of the material was still available on the internet. All of which meant Lord Bracadale found that the argument that the passage of time was a safeguard to a fair trial was a weak one.

Focusing effects of the hearing of the evidence
In contrast Lord Bracadale considered that the focusing effects of listening to the evidence over a pro-longed period was a powerful safeguard. It was not just a polite fiction:

“It is within the daily experience of judges and counsel that juries do become engrossed in the evidence and return verdicts which reflect the evidence. It seems to me that listening to the evidence and hearing it being tested in cross examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. That is more likely, in my view, to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views. In addition, the jury will have regard to the evidence as a whole, which is a significant consideration.”

Directions of the trial judge
With regard to the directions of the trial judge, the court must assume that jurors will follow the directions given to them by the trial judge. This was a case in which special directions were necessary and would require to cover, for example, internet research and to putting knowledge of the case gleaned from the media from their minds.

Decision
Lord Bracadale had been satisfied that, when taken together, the safeguards removed the risk of prejudice and a fair trial had been available to the Sheridans.

The note repeats the directions Lord Bracadale gave to the jury in his introductory remarks, the reminders he gave during the trial and also the directions given in his charge to the jury.

The full text of the note is available from Scottish Courts here.