Sheridan wins first round
Mike Macnair discusses some of the legal implications of the case and argues that socialists should not use the bourgeois press to fight out their differences
Tommy Sheridan has won the first round of his legal battle with the News of the World. After a dramatic trial, the jurors decided by a seven-four majority that the paper's claims were not "substantially true" and awarded Sheridan the £200,000 he had asked for: exceptionally high damages in Scots defamation actions.
The trial was marked by the fact that a good deal of the NOTW's case proved to be weak as legal evidence. For some reason as yet unknown, the NOTW opened its case with an item of hearsay from an unidentified, out of court declarant - evidence which is almost worthless and would probably be inadmissible in an English court. Several witnesses proved to have been paid by News International, the owners of the NOTW, or to be weak under cross-examination.
It turned out that some of the strongest evidence against Sheridan concerned alleged confessions made to fellow SSP members, especially at the SSP executive committee meeting of November 9 2004. Sheridan was able to undermine this evidence by arguing that it was part of a conspiracy within the SSP to discredit him.
The NOTW's counsel, Mike Jones QC, tried to have the case withdrawn from the jury. The legal grounds have not been reported, but it indicates that News International was not confident of getting a verdict. In the end, Jones put it to the jury that if they believed only one of the witnesses against Sheridan, they should find for the NOTW. This witness was Katrina Trolle, an SSP member who said Sheridan had had an affair with her; counsel claimed this was corroborated by phone records of late-night calls.
The judge echoed Jones, telling the jury they should find for the NOTW if they believed any one of its witnesses. But he also carefully distanced himself from endorsing the paper's journalistic standards. The jury didn't buy it.
What comes next
The show's not over till the fat lady sings. In this case there are two fat ladies. The first is the inner house of the court of session, the Scots equivalent of the English court of appeal. News International has announced that it intends to appeal the decision and seek a new trial, on the ground that the jury's verdict is "perverse": ie, so inconsistent with the weight of the evidence given at trial that no reasonable jury could come to this conclusion. The NOTW must be pretty confident (or willing to cough up a lot of money to smear Tommy Sheridan), since its August 6 issue substantially asserted that the verdict was wrong and Sheridan had lied in court. If it loses on appeal, this will be a fresh defamation entitling Sheridan to another wad of damages and costs. The Scotsman reports that the appeal process will take at least a year because the court and the lawyers are so busy.
Lawyers consulted by The Scotsman take the view that the NOTW will have an uphill battle in appealing (August 6). At the end of the day the whole case turned on the credibility of the witnesses. In such cases appeal court judges are usually reluctant to second-guess juries.
The second fat lady is the Lothian police, who announced at the weekend that it had received a complaint that witnesses had perjured themselves at the trial. They did not say who had made the complaint. A police investigation will follow. A Scots solicitor writing for the BBC website has commented that an actual perjury prosecution is relatively unlikely. The perjury defendant has to be proved, to an exceptionally high standard, to have knowingly and wilfully lied under oath. In the absence of a confession, this effectively requires (1) prior statements by the defendant inconsistent with what they swore in court, or other evidence showing that they knew what they said under oath was untrue; (2) clear proof that what they swore in court was untrue, rather than the prior statements being untrue; and (3) evidence of motive to lie. The last of these is easy to find in this case, on both sides; the first two will be much more difficult. A police investigation will take several months; the most likely outcome will be "insufficient evidence to justify a prosecution".
It should be said, however, that if the SSP executive members who in the end gave evidence against Sheridan had gone into court and given evidence in his favour, they could much more clearly have been prosecuted for perjury. Given the existence of the (alleged) minute of the November 9 2004 executive meeting and what several of them had said in the meantime, they would clearly have changed their stories.
Under these conditions, the judge would have stopped the trial to allow the perjury prosecutions to proceed. Once McCombes and co were safely in jail, Sheridan would have lacked the 'cabal' story to offer the jury as an explanation of the (alleged) November 9 minute: and the NOTW would probably have won hands down.
The NOTW's allegations against Sheridan are either (a) substantially true (as the SSP's United Left assumes); or (b) substantially false (as Sheridan argued in court and as the jury has found); or they are (c) partly true and partly false - that is, have sufficient truth in them to have persuaded at least some UL supporters that they are substantially true, but sufficient falsity to undermine the NOTW's case in court.
If the allegations are substantially true and Sheridan has simply lied (and perhaps some of his supporters also lied) in court, then he would have abused the legal process of the capitalist state to give himself a false reputation and smear his opponents in the SSP leadership, and in the course of doing so smeared his former lovers as fantasists. This would amount, as the UL argues, to a gross breach of proletarian morality and a scab attack on the party he co-founded. If this is the case, he should be driven out of the workers' movement.
If the allegations are substantially false, then by making and retaining a minute of the November 9 executive meeting which included the statement that Sheridan had admitted to a part of the NOTW's allegations, the executive majority committed themselves to support for an attack by the Murdoch press on the SSP's most prominent leader. If they deliberately followed this course of action for factional reasons, then they are scabs and should be driven out of the workers' movement.
Minutes and disclosure
I say that the minute is critical, because once the minute was made in a form which included an alleged confession by Sheridan and retained in this form, it was bound to be discovered and its production in court forced. The executive members were then bound to be faced with a choice of giving evidence against Sheridan, prosecution for contempt or prosecution for perjury. Without the minute they would very probably not have been called to give evidence, and if they had been called could safely have taken refuge in the fallibility of memory.
It is therefore a matter of elementary legal self-defence not to make and keep minutes of this type where legal proceedings are possible, unless you are prepared to defend their contents in court. This is widely understood, though perhaps this knowledge has not penetrated to the SSP executive or whoever was giving them legal advice. The fact that the EC made and kept such a minute is the nearest approach to evidence in favour of Sheridan's argument that there is a factional cabal plotting against him that has yet been offered.
The Weekly Worker in November-December 2004 argued that the SSP executive should make public the grounds of its decision that Tommy Sheridan should resign as convenor. This may seem inconsistent with what I have just said. It is not, for two reasons.
The first is that the EC in its November 9 meeting was in no position to decide how much, if any, truth there was in the NOTW's allegations against Tommy Sheridan. It was in a position analogous to a lawyer who is consulted about whether to bring an action; though not closely analogous enough to make the minute legally privileged. The executive could perfectly legitimately decide on tactical grounds that Sheridan should not sue, or at least that he could not both sue and remain convenor. But it should not, any more than a lawyer should, make premature decisions on the facts which were potentially prejudicial to later investigation either in court or by some party tribunal: and recording alleged admissions by Sheridan in the minutes was exactly to make such prejudicial decisions.
The second is that, given this wrong decision was made, full disclosure in November-December 2004 would have been a lot less damaging to the SSP than what has actually happened: first, obviously false public statements about why Sheridan was resigning; then a partial account of the executive's decisions given to the SSP national council, under a futile attempt to keep it secret; finally, the disputed minute dragged into the light of day in the full glare of publicity, the party subjected to heavy legal costs, and a spectacular trial with leaders of the party accusing each other of perjury and scab conduct.
To repeat, if the NOTW's story is substantially true, Sheridan is guilty of a gross breach of proletarian morality. If it is substantially false, the majority of the SSP executive are scabs. This is how the camps in the SSP seem to line up. But there is a third possibility. The NOTW's story might be partly true and partly false: true enough to cause the SSP executive in November 2004 to panic (in the light of their existing political approach) and make an irretrievable mistake, but false enough to amount to a smear campaign, which would mean Tommy Sheridan was not just acting as a cynical egomaniac when he insisted on suing the NOTW.
To a limited extent, this is obviously true. On the one hand, Sheridan certainly conceded that he had slept around a good deal before his marriage, and that he had had an affair at that period with witness Anvar Khan. Khan, on the other hand, admitted under cross-examination that some things printed under her name in the NOTW had been a "puff" which did not "relate to reality," thereby considerably discrediting the rest of her evidence.
It is, indeed, possible that Sheridan admitted to the SSP executive going at some time to the Cupids Manchester sex club, as the EC members called as witnesses by the NOTW insisted. The truth is that, despite the trial, we still do not know. Neither the executive majority, nor the Sheridan supporters on the EC, broke down under cross-examination. But even if he did go, that need not necessarily imply that the main burden of the NOTW's story, which was about prostitutes, drink, drugs and 'kinky sex', was substantially true.
What would be the political implications of this sort of messy, half-true, half-false position? The answer would be that comrades on both pro- and anti- Sheridan sides of the SSP majority leadership had made choices which politically disarmed them when the NOTW smear campaign came along in November 2004; and that, finding themselves in a hole, they proceeded to dig it deeper.
The rest of this article explores this possibility. Just suppose, for a moment, that Tommy Sheridan is not a cynical liar and that Alan McCombes and co are not a bunch of scabs. How might they have got into this mess?
Media sex police
The News of the World's smear campaign against Sheridan is part of an old tradition. Media-run sex scandals play both an immediate political role in British political life, of discrediting individuals, and a larger, ideological role of social control. This has been true since the Tory smears accusing the Whig opposition leader, the Earl of Shaftesbury, of sexual deviance in the early 1680s and smears of homosexuality directed (by the Tories again) against king William III in the 1690s and against Whig leader the Earl of Sunderland in the early 18th century.
The political role is obvious. The social control role is less transparent. Media smears about sexual deviance are commonly accompanied, as they were in the late 17th century and the early and late 19th, by 'morality' campaigning operations involving the police and quasi-police bodies ('vice societies'). The purpose of this activity is to create a cross-class political bloc, which unites the 'respectable' middle and working classes, through the police, with the 'party of order' - meaning, until Blair started to steal the Tories' clothes, the Conservative Party wing of capital. The other side of the coin is to promote among the 'respectable' members of the subordinate classes fear of the dirty and undisciplined other: Jews, homosexuals, immigrants, prostitutes, pornographers and political radicals. In this aspect it is the old divide-and-rule story.
Dirty vicars, cottaging rock stars, kinky politicians, media celebs visiting pro-dommes: it is all part of Tory politics (and its US and continental equivalents), even when individual Tory politicians are hit by it. It is a part of Tory politics which the left all too often buys into, thereby promoting Toryism. The statement in the McCombes-controlled SSP All-Members' Bulletin issued after the verdict, headed "The fight for the truth", makes a profound political error when it imagines that this permanent campaign of the tabloid press in the interests of Toryism is apolitical (August).
In November 2004, therefore, both the executive majority and Sheridan panicked and took badly wrong decisions. The EC was right to decide that Sheridan should not sue, but did so for the wrong reasons. There were two good political reasons why Sheridan should not have sued. The first is that to do so was an unnecessary gamble, like calling an all-out strike over a small issue and with no preparation of the forces, or putting trade union branch funds on the horses. Lawsuits are always a gamble. So far it has worked for Sheridan - but been disastrous for the SSP.
The second is that for Sheridan to go to court over this issue reinforces the Tory sex politics of the News of the World's smear campaign. It is to say: yes, people who have unconventional sex lives of one sort or another are proper targets for your paper, but I'm not one of them. But even if Tommy Sheridan is not one of them, no doubt there would be some other SSP target who was vulnerable to this sort of smear campaign. And in reality, Tory sex smears do not just work on individuals: they work against social groups and against working class unity. To sue therefore showed a lack of elementary solidarity with other victims and potential victims of the NOTW.
But the executive went badly wrong in two other ways. The first was the reasoning. McCombes's argument, expounded at length in the now released minutes of the November 9 2004 EC, is that Sheridan's admissions at the meeting, and to him previously, showed that the NOTW story was substantially true. This was to prejudge the possible case. Moreover, McCombes is "not concerned about any perceived moral issue, but feels there are conflicts with the party's evolving positions on issues such as pornography, prostitution, lap-dancing, etc" (EC minutes, November 9 2004). By adopting 'official feminist' positions on this question (see p6) - ie, that prostitution is a form of abuse - the SSP leadership had disarmed itself politically in face of the NOTW attack.
Secondly, I have already discussed the error involved in the making of the minute: the effect was to put the EC members in the impossible position they found themselves in at the trial. As I said before, the minute is the strongest evidence for the 'cabal'. But there is a simpler possible explanation. The comrades had clearly come to believe that the NOTW allegations were broadly true; and they had come to a common view that suing would be disastrous for the SSP. In this situation, it seems likely that they intended to hold the minute over Sheridan's head to persuade him not to sue.
If this was what they were trying to do, it was both unprincipled and disastrously wrong. The executive might have prevented the action going ahead. They would have had to publish the minute soon after November 2004, and face up then to the consequence that they would be accused of scabbing on Sheridan's lawsuit. By keeping the minute confidential, all they have achieved is to make the inevitable crash worse at the end of the day.
The executive might have scabbed when it made and kept the November 9 minute, and thereby exposed its members to the risk of being forced to testify. But if they were not scabbing when they did that, they were not scabbing afterwards, any more than workers who are arrested and forcibly made to work at gunpoint (as happens from time to time in some countries) are 'scabbing'.
If, as Sheridan alleges, they decided to use the NOTW story to knife him, that would be scabbing. But if (as I suggested above may have happened) they simply panicked and tried to use unprincipled and stupid methods to stop Sheridan suing the NOTW, that would not be.
It is important to be clear about what Tommy Sheridan did when he sued the News of the World. First, he called on the aid of the British state against the Murdoch press. A civil action is just as much calling on the aid of the state as is calling the cops if neo-Nazis throw bricks through your windows. If you get the damages and the defendant refuses to pay, the bailiffs will be sent in - and if they meet resistance, they will call the cops. As the example indicates, there is no principle against socialists calling the cops where necessary, or against suing people where necessary. It is important, however, not to dress up this individual action as a 'class battle'.
In George Galloway's case against The Daily Telegraph, there was no question of suing reinforcing Tory politics. Communists are just as much opposed to other socialists taking personal bribes from tyrannical regimes as are Tories, so to sue to show that Galloway had not done so was simply to reject a smear. In Sheridan's case, in contrast, the case involved legitimising the NOTW's usual Tory sex smear operations where they happen to be true, by insisting that Sheridan had not done it.
Moreover, it also involved Sheridan's counsel attacking the credibility of some of the NOTW's witnesses on the basis that they were prostitutes and ex-prostitutes. From the point of view of the law game, this was perfectly legitimate. From the point of view of the politics of prostitution, to employ this legal technique is to reinforce the mechanisms of pimping, the enslavement of prostitutes and violence against them. A critical element among these mechanisms is the fact that the law, and hence juries, regard prostitutes as not fully credible witnesses.
Second, Sheridan broke ranks in the SSP. If an individual went on strike against the decision of their trade union and of the mass meeting of their fellow workers, we would not normally regard people who went to work as 'scabs' (though the Spartacists have been known in the past to make arguments of this type). Moreover, Sheridan could have appealed to the national council meeting on November 28 2004 against the executive's decision that he should not sue. He did not do so. If he had lost at the national council he could have taken the issue to the SSP's annual conference on February 12-13 2005. He did not do so. Perhaps this was because the secret executive minute was held over his head: we do not know. But, if so, all he needed to do to remove the threat was disclose the content of the minute to the members and/or denounce it as false. He did not do so.
In this situation, to call the executive majority scabs is stupid Spart-talk. The impact of the Sheridan lawsuit on the SSP is not a matter of betrayals which can be cauterised by cutting out either the Sheridan scab or the McCombes scabs. It is more like a car accident. Both sides have committed disastrous errors, which are in the process of ending in catastrophe. The best the left can learn from this wreck is how not to do it again.
This particular car wreck has had three causes so far visible. The first was that the SSP leadership itself built up a cult of Sheridan as their single front-man. The second was its politics of taking the line of least resistance. This is visible in its nationalism, which meant that it did not confront the SW platform and Committee for a Workers' International on their home turf, so that the SW platform and CWI were able to come back at the EC majority by backing Sheridan without paying a political price in England. It is also visible in the SSP's embrace of 'official feminism' in the prostitution policy, which backed both Sheridan and the executive majority into a corner when the NOTW accused Sheridan of using the services of prostitutes.
The third was the problem of trying to keep secrets. In a micro-group this is possible up to a point, as Workers Power have just shown us. In a party, even a party as small as the SSP, there are bound to be leaks. It is better to proceed on the basis that things will come out.