[2015] HCJAC 49


Lord Menzies

Lord Brodie

Lady Clark of Calton


delivered by LORD BRODIE









Appellant:  Macleod QC, Meehan;  Livingston Brown, Glasgow

Respondent:  Goddard AD;  Crown Agent

1 April 2015


[1]        The appellant in this appeal in terms of section 74 of the Criminal Procedure (Scotland) Act 1995 is charged on indictment with perjury. A diet for his trial in the High Court has been fixed for 21 April 2015. The allegations of perjury relate to evidence given by the appellant when called by Mr Tommy Sheridan, at the trial of the latter and Gail Sheridan, also on a charge of perjury, in the High Court at Glasgow (“the Sheridan trial”) on 9 and 10 December 2010.

[2]        The libel in the indictment against the appellant includes the following:

“On 9 and 10 December 2010 at the High Court of Justiciary, Saltmarket, Glasgow, you ANDREW EDWARD COULSON, having been sworn as a witness in the trial of Thomas Sheridan and Gail Sheridan then proceeding in the High Court of Justiciary at Glasgow upon an indictment at the instance of Her Majesty’s Advocate charging them with attempted subornation of perjury and perjury, did falsely depone: ...

(b) that whilst you were employed as Editor of the News of the World Newspaper there was not a culture of making use of the unlawful interception of communications in the course of their transmission by a public telecommunication system, commonly known as ‘phone hacking’ at the News of the World Newspaper and that you were aware only of a ‘very unfortunate case’ of ‘phone hacking’ involving Clive Goodman; ...”


[3]        The appellant has taken objection to the admissibility at his trial of evidence of the asking of certain questions of the appellant by Mr Sheridan and the answering of these questions by the appellant. The evidence objected to has been identified by the appellant by reference to passages in the transcript of the Sheridan trial in a preliminary issue minute lodged by the appellant in terms of sections 72(6)(b)(i) and 79(2)(b)(iv) of the 1995 Act.  A number of different points of objection is taken in the minute. However, this appeal relates to only one of these points.  The appellant contends that to admit evidence of a certain passage in the transcript, where reference is made to the appellant’s having given evidence before a Parliamentary select committee, would be to breach the privilege of the United Kingdom Parliament by entering into a consideration of matters which, constitutionally, are within Parliament’s exclusive jurisdiction. This point is taken at paragraph 4.6 of the preliminary issue minute.

[4]        It is accepted on behalf of the Crown that the passage in the transcript from the Sheridan trial which is objected to is the foundation for sub-paragraph (b) of the indictment, quoted above.

[5]        On 2 February 2015 at a continued preliminary hearing Lord Burns heard submissions on the admissibility of the evidence identified at paragraph 4.6 of the minute. Lord Burns further continued the matter to 9 February 2009 when he repelled the objection. He granted leave to appeal his decision.



[6]        For a period of four years between January 2003 and January 2007 the appellant was editor of the “News of the World” newspaper. During that time material was published in the “News of the World” about Mr Sheridan which Mr Sheridan regarded as defamatory. In an action in which a jury verdict was given in 2006 Mr Sheridan successfully sued the publishers of the newspaper for damages. It was in respect of his alleged perjury when giving evidence in that action for damages that Mr Sheridan was being prosecuted in the Sheridan trial.

[7]        The Culture, Media and Sport Committee is a departmental select committee appointed by the House of Commons to examine the expenditure, administration, and policy of the Department for Culture, Media and Sport and its associated public bodies. The committee has an interest in press freedom and press standards. In pursuit of that interest and prompted by a number of specific concerns it initiated an inquiry into these matters on 18 November 2008. It thereafter received written and oral evidence from witnesses. In July 2009 it reopened the taking of evidence in the light of allegations of the illegal interception of public telecommunications (otherwise “phone hacking”) by journalists and others employed by or associated with the “News of the World”. The report on the committee’s inquiry was ordered by Parliament to be printed on 9 February 2010. It is freely available to the public both in hard copy and through the Parliament website.

[8]        Among those who gave evidence to the committee was the appellant. He gave that evidence on 21 July 2009. A minute of that evidence is reproduced as part of the committee’s report to Parliament.

[9]        By the time the appellant was called to give evidence at the Sheridan trial Mr Sheridan had dispensed with the services of counsel and was conducting his own defence. We were told by Mr Macleod, who appeared for the appellant before us, that when addressing the jury at the Sheridan trial Mr Sheridan had explained that his purpose in calling the appellant to give evidence was not because he thought the appellant was going to help his defence but “because I think I have a public service and a public duty to try and expose wrongdoing.”


The evidence objected to

MR SHERIDAN:   You’ve given evidence Mr Coulson at that House of Commons Select Committee on Culture, Media and Sport looking into allegations of phone hacking at News International, haven’t you?




MR SHERIDAN:   Do you think your memory served you well when you gave that evidence?


MR COULSON:   I think so – yes. 


MR SHERIDAN:   Were you able to answer questions with some clarity at that Committee hearing?


MR COULSON:   I did my best.


MR SHERIDAN:   Can you recall the findings of that parliamentary committee?


MR COULSON:   Not exactly, but I’ve got a feeling you’ll remind me. 


MR SHERIDAN:   Well do you remember the Committee finding that the News of World UK at best turned a blind eye to illegal activities such as phone hacking and blagging and at worst actively condoned it.  Do you remember the Committee saying that? 


MR COULSON:   Yes I remember reading the, reading their findings. 


MR SHERIDAN:   Do you remember them saying that a culture undoubtedly did exist in the newsroom of the News of the World at the time, which at best, turned a blind eye to illegal activities such as phone hacking and blagging and at worst actively condoned it while you were the editor? 


MR COULSON:   Well I gave I gave pretty long and detailed evidence to that select Committee and I gave my view pretty clearly.  I don’t accept that there was a culture of phone hacking at the News of the World.  There was a very unfortunate, to put it mildly, case involving Clive Goodman.  No one was more sorry about it than me and that’s why I resigned. 


MR SHERIDAN:   Do you recall the parliamentary Committee concluding that it had not received help from you or any executive at News of the World in relation to their attempt to investigate the phone hacking? 


MR COULSON:   No I gave – sorry could you repeat the question?


MR SHERIDAN:   Sorry. 


MR SHERIDAN:   Do you recall the conclusion of the parliamentary committee that neither you or any other executive of the News of the World were able to provide help and assistance with the inquiry into phone hacking allegations at the News of the World? 


MR COULSON:   Are you sure they said that about me?


MR SHERIDAN:   They said in seeking to


MR COULSON:   Because I gave


MR SHERIDAN:   Discover precisely who knew what among the staff of the News of the World we have questioned a number of present and former executives.  You come into the latter category.  You are a former executive.  Is that right? 


MR COULSON:   I was at the time of giving evidence.  Yeah. 


MR SHERIDAN:   They questioned a number of present and former executives of News International.  Throughout we have repeatedly encountered an unwillingness to provide the detail information that we sought, claims of ignorance or lack of recall and deliberate obfuscation.  We strongly condemn this behaviour which re-inforces the widely held impression that press generally regard themselves as unaccountable and that News International in particular has sought to conceal the truth about what really occurred.  Is that what you were doing, trying to conceal the truth Mr Coulson? 


MR COULSON:   No and I’m not sure that they are referring to me.  I gave lengthy evidence.  I answered every question that was asked of me by a large panel of members of parliament. I couldn’t have been more co-operative.  So I’m not sure that that refers to me Mr Sheridan. 


MR SHERIDAN:   So your answer to the House of Commons Select Committee inquiry is that this reference to former executives is to somebody else, but not you?


MR COULSON:   Well I can only tell you that I co-operated with the Committee fully.  You know I sat and gave evidence for many hours. 


MR SHERIDAN:   But this is your paper being condemned by a parliamentary Committee while you were the editor. 


MR COULSON:   Well Mr Sheridan I’m not going to stand here and pretend that things didn’t go wrong at the News of the World.  I said so at the time.  That’s absolutely my position now.  It is why I resigned.  It’s why I gave up a 20 year newspaper career. 


MR SHERIDAN:   Because you were deputy editor, then editor over a seven year period?


MR COULSON:   That’s right.”


The law

[10]      The advocate depute argued, rather faintly, that the position may have been qualified or developed by certain obiter remarks by Bean J at paras 32 to 35 of his judgment in R (on the application of Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin).  That point was not however insisted upon and we took parties to be agreed that the law as to Parliamentary privilege is authoritatively stated in the judgment delivered by Lord Browne-Wilkinson giving the advice of the Privy Council in the appeal from the decision of the Court of Appeal of New Zealand in Prebble v Television New Zealand [1995] 1 AC 321.

[11]      The modern law is derived from article 9 the Bill of Rights of 1689 which provides: “That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.” The Bill of Rights (something of an emergency provision subsequently ratified and confirmed by the Crown and Parliament Recognition Act 1689) was a measure enacted by the English Convention Parliament. However, as Lord Reed observed in Adams v Guardian Newspapers Ltd 2003 SC 425 at 431, what was originally an English doctrine of Parliamentary privilege which found expression in article 9 was thereafter accepted as a basis for the privileges of the Union Parliament. It is thus part of the law of Scotland which, on this matter, is the same as that in the rest of the United Kingdom.

[12]      As Lord Brown-Wilkinson and Lord Reed explain, article 9 is but one manifestation of a wider principle. The Bill of Rights was enacted in a particular historical and political context: the immediate aftermath of the deposition of James II and the accession of his son-in-law William of Orange and his wife, Mary, as king and queen of England.  Article 9 may be regarded as having been enacted in order to remedy a particular mischief.  That was identified in the preamble to the Bill as: that the late King James the Second did “endeavour to extirpate and subvert the laws and liberties of the kingdom”, inter alia, “by prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament ... contrary to the known laws and statutes and freedom of this realm”. However, the Privy Council in Prebble expressly rejected the narrow construction of article 9, based on reference to this mischief, which had been adopted by Hunt J, sitting in the New South Wales Supreme Court in R v Murphy (1986) 64 ALR 498, and adopted as an expression of the true principle the formulation to be found in the Australian Commonwealth legislation enacted shortly after the decision in Murphy in order to make clear that that decision did not represent the law of the Commonwealth. The relevant provision is section 16 (7) of the Commonwealth Parliamentary Privileges Act 1987, which reads as follows:

“In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of - (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.”


Thus, as is it was put by Brown J in Church of Scientology v Johnson-Smith [1972] 1 QB 522 at 529H:

what is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.”


[13]      The principle reflected in the doctrine of Parliamentary privilege is one of separation of powers, the mutual recognition by Parliament on the one hand and the courts on the other, that their constitutional roles and therefore respective jurisdictions are different (see Prebble supra at 332 D). It is not for one to interfere with or otherwise trench upon the proceedings of the other. As Lord Reed noted in Adams supra at para 15, this is what Sedley J described in R v Parliamentary Commissioner for Standards, ex p Al Fayed [1998] 1 WLR 669 at 670 as “a mutuality of respect between two constitutional sovereignties”.

[14]      It was readily conceded by the advocate depute that the proceedings of Parliament which are subject to its exclusive jurisdiction include what is done by or before its committees as well as what occurs on the floor of the House; it includes the giving of evidence by witnesses to such committees. The effective protection which Parliamentary privilege affords such a witness goes beyond immunity from direct criminal or civil liability for what he might say in evidence.  As Lord Browne-Wilkinson explained in Prebble at 334A

“[The view that article 9 only applies to cases in which the court is being asked to expose the maker of the statement to legal liability for what he said in Parliament] discounts the basic concept underlying article 9, viz. the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.”


He then immediately returned to the separation of the two jurisdictions:

“Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.”


In the course of his submissions Mr Macleod encapsulated what he said was the applicable principle of law in the succinct and accessible proposition: “What happens in the House, stays in the House.” As a summary of Lord Brown-Wilkinson’s exposition in Prebble that may be incomplete, but we would see it as at least catching the flavour.


The decision at first instance

[15]      Lord Burns accepted that the law as laid down in Prebble applied in Scotland. He also accepted that the effect of Parliamentary privilege was that evidence of what had been said by a witness before a select committee would not be admissible in civil or criminal proceedings in Scotland, if the use of such evidence would involve imputations of criminality on the part of the witnesses; such imputations would be within the sole jurisdiction of Parliament to deal with. However, he did not accept that Parliamentary privilege rendered the evidence in the present case inadmissible. What the Crown proposed to lead in support of the charge of perjury was the evidence given by the appellant at the Sheridan trial and not the evidence given by the appellant or anyone else before the select committee. When Mr Sheridan referred, at page 23 of the transcript, to a finding of the committee about a culture of phone hacking, he did not seek to impeach or question the finding. The answer did not involve any imputation upon the committee’s conclusions. The appellant had not accepted that there was a culture of phone hacking at the “News of the World” but that did not amount to suggesting that the actions or words of the committee “were inspired by improper motives or were untrue or misleading”. Parliamentary privilege did not extend to conferring absolute privilege on what a private citizen may say outside Parliament simply because it ran contrary to a finding by a Parliamentary committee, even if that private citizen has previously given evidence before that committee.




[16]      Mr Macleod submitted that the parts of the transcript identified at paragraph 4.6 of the preliminary issue minute should be held to be inadmissible in evidence at the appellant’s forthcoming trial. What is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action, even although the cause of action itself arises out of something done outside the House: Church of Scientology v Johnson-Smith supra at 529H.  He made no criticism of the judge at the Sheridan trial, who had had the difficult task of ensuring that the self-represented Mr Sheridan had a fair trial while at the same time attempting to keep the evidence within the bounds of what was relevant.  Nevertheless by his questioning in the passages of evidence identified in paragraph 4.6 of the preliminary issue minute, Mr Sheridan had violated the privilege of Parliament. To allow the Crown to put these passages before the jury at the appellant’s forthcoming trial would be to repeat that violation. The purpose of Mr Sheridan’s reference to the appellant giving evidence before the committee was to undermine his character and his credibility by drawing attention to the committee’s findings. The critical passages had to be read in the context of what had gone before, where it was suggested to the appellant by Mr Sheridan that he had employed criminals, had paid corrupt police officers, had operated a regime of fear, had printed lies, had been subject of complaint to the Press Complaints Commission, and that an employment tribunal had found him to have acted in a bullying manner. As for his evidence before the committee, Mr Sheridan employed the familiar technique of the cross-examiner in getting the appellant to commit to the evidence by asking “Do you think your memory served you well?” before asking “Is that what you were doing, trying to conceal the truth Mr Coulson?”



[17]      While accepting that proceedings before a Parliamentary select committee fell under the protection of Parliamentary privilege, the advocate depute submitted that Lord Burns had not erred in repelling the objection made in the preliminary issue minute. One had to look at the precise terms of the questions and the answers. Privilege might attach to one part of the appellant’s evidence to the committee but not to other parts. What was said outside Parliament, albeit it may be a repetition of what has previously been said in Parliament is not protected by privilege: Buchanan v Jennings [2005] 1 AC 115 at para 13. What the Crown was relying on in the present case was what the appellant had said at the Sheridan trial, not what he may have said to the committee. Indeed, if one’s only source of information was the transcript of the Sheridan trial one would not know what the appellant had said to the committee. The appellant’s answers included: “Well I gave pretty long and detailed evidence to that select committee and I gave my views pretty clearly. I don’t accept that there was a culture of phone hacking at the News of the World.” That was a statement of the appellant’s position at the time of the Sheridan trial. What his evidence had been to the committee was never stated in terms, whether by way of question or answer. It could not be said that the questions and answers in the relevant passages in the transcript of the evidence at the Sheridan trial impugned what had been said in the committee or done by the committee or suggested that what was said or done was inspired by improper motives. For an individual to express an opinion that differs from the conclusion reached by a Parliamentary committee is not the same as to impute improper motives or to say that the proceedings before the committee were untrue or misleading. The evidence that the Crown proposed to lead at the appellant’s forthcoming trial goes no further than the allegation of what was said by the appellant on a particular occasion. Parliamentary privilege was simply not engaged. 



[18]      We have had little difficulty in concluding that for the Crown to lead the evidence objected to would be to offend against the privilege of Parliament or, to put it differently, would lead the High Court of Justiciary to intrude upon an area where it has no jurisdiction. Mr Sheridan might have adopted a different line of approach to his questioning of the appellant at the Sheridan trial in relation to allegations of phone hacking. How far the trial judge would have allowed him to go with such questioning would no doubt have depended upon the precise direction of the line. However that is as may be. The line that Mr Sheridan did adopt was quite specifically to tie his questioning to what had occurred when the appellant gave evidence before the select committee on 21 July 2009 and what the committee appears to have made of that (and other) testimony. We agree with Mr Macleod that particular questions and answers must be looked at in the context of the passage of evidence in which they are to be found and that that passage has to be looked at in the context of the whole of the appellant’s evidence and the apparent purpose of Mr Sheridan in calling the appellant as a witness.  To attach importance and isolate the precise way in which particular questions and answers were formulated (as they are rendered in the transcript), and make judgment on that basis was the approach commended by the advocate depute.  That appears to us to be wrong.

[19]      Mr Sheridan did not set out simply to establish that the appellant had given evidence before the select committee. His apparent objective was to establish or at least imply what that evidence had been and that it had been given by the appellant “with some clarity” when his memory served him well. Mr Sheridan then asked whether the appellant remembered the committee finding that the “News of the World” had turned a blind eye or at worst condoned phone hacking and “blagging” (ie unlawfully obtaining or disclosing personal data). At that point Mr Sheridan’s clear purpose was to suggest, by reference to the committee’s finding, either that the appellant had admitted as much to the committee or that he had denied it and not been believed. That was to put in issue both what the appellant had said and the committee’s conclusion on what he had said. Moreover, the appellant gave an answer which included “I don’t accept that there was a culture of phone hacking at the News of the World”. The advocate depute interpreted that as a statement of the appellant’s position as at the date of the Sheridan trial and indeed the Crown intends to use it as an instance of what it alleges was perjury committed at that trial, as opposed to an account of what the appellant had said to the committee. We would see that as an overly refined reading of what was a piece of oral communication in the stressful situation of what was aggressive cross-examination on the part of Mr Sheridan. The answer is equally capable of interpretation as an explanation of what the appellant had said to the committee on 21 July 2009. Indeed, at page 24, lines 11 to 19, of the transcript, the appellant is specifically questioned in the context of the evidence heard by the committee and he is asked if what he was doing was trying to conceal the truth.  The appellant denies that and says that he gave lengthy evidence to the committee.  This exchange makes plain that the passage of the transcript of the Sheridan trial which the Crown proposes to lead, clearly relates to the proceedings before the select committee and therefore falls within the exclusive jurisdiction of Parliament. To found upon it in court proceedings would be to offend against the privilege of Parliament for all of the reasons underlying the principle which are explained by Lord Browne-Wilkinson in Prebble. Mr Sheridan was asking about proceedings in Parliament for each of the purposes specified in paragraphs (a), (b) and (c) of section 16(3) of the Parliamentary Privileges Act 1987, the Australian provision adopted in Prebble as accurately expressing what Parliamentary privilege as it applies in the United Kingdom prohibits. Mr Sheridan was not prevented from doing so in the Sheridan trial because the point was not taken, for reasons that we can understand. However, the point is taken now and to repeat the exercise carried out by Mr Sheridan, as the Crown proposes to do in the appellant’s trial, would be to repeat the breach of privilege. That is not something, which, in the public interest, the Crown should be allowed to do. Again, this is explained by Lord Browne-Wilkinson. Strictly, what is in issue is not the protection of the interests of the appellant. It is the protection the public interest in Parliament receiving evidence and information and then expressing opinions as fully and as freely as possible without members and witnesses being fearful of being subject to court proceedings of one sort or another as a consequence of what they have said. The appellant was a witness before a select committee. It was and is in the interests of that committee that he, and witnesses who may give evidence before it in future, should feel able to give evidence freely. Equally, if such witnesses should attempt to mislead the committee then it is for Parliament, in exercise of its powers, to take what action it considers appropriate.

[20]      Lord Burns thought that what was proposed would not in any way involve any adverse imputation on the conclusion of the committee and that therefore Parliamentary privilege would not be infringed. The advocate depute submitted that Lord Burns had been right about that; the questions had not been designed to impeach or question the findings of the committee.  We do not accept that approach. It may be that Mr Sheridan was content and indeed that the Crown is content to accept the correctness of what Mr Sheridan in his question suggested was the committee’s conclusion.  So be it.  That is not determinative.  Article 9 of the Bill of Rights provides that proceedings in Parliament ought not to be “impeached or questioned”. It is true that these are words with a primarily negative connotation, certainly in modern English but also, as it would appear from the Oxford Dictionary, seventeenth century English.  That does not mean that it is only criticism of Parliamentary proceedings that is prohibited by the doctrine of privilege; it also applies when they are in any way put in issue.  As we have already indicated, in Prebble the Privy Council adopted the terms of section 16(3) of the (Australian) Parliamentary Privileges Act 1987 as an accurate statement of the principle.  The full terms of section 16(3) are set out in paragraph [12] of this opinion.  They prohibit the leading of evidence questioning anything forming part of proceedings in Parliament but they also prohibit the leading of evidence for the purpose of relying on the truth etc of anything forming part of proceedings in Parliament; otherwise establishing the credibility etc of any person; or inviting the drawing of inferences or conclusions wholly or partly from anything forming part of these proceedings.  Parliamentary proceedings are simply off-limits when it comes to litigation.  They cannot be relied on either to make or to rebut a case and it does not matter whether, for the purposes of litigation, their integrity is being disputed or is being endorsed. 

[21]      By drawing attention to the committee’s findings, particularly in the context of the appellant disagreeing with these findings and being accused of concealing the truth, the findings of the committee and therefore the conduct and outcome of the proceedings before it which led to the committee making these findings, may all be put in issue. It appears to us to be as much an intrusion on the exclusive jurisdiction of Parliament to seek, for the purpose of court proceedings, to persuade a jury to endorse the findings of a Parliamentary committee as to persuade it to reject them. But even if that were not so, what about the position of the appellant? Once the Crown has put details of the committee’s proceedings and conclusions before the jury, as it proposes to do by leading the relevant passages in the transcript, might he not wish to challenge them? We simply do not understand how, in the context of this case, evidence of the committee’s proceedings can be put before the jury without allowing these proceedings to be challenged in one way or another. Indeed doing so invites such challenge. That is just what the doctrine of Parliamentary privilege forbids.

[22]      Before us parties concentrated on what appeared at pages 22 to 25 of the transcript. Paragraph 4.6 of the preliminary issue minute had identified other, short, passages in the transcript as also subject to objection on the grounds of Parliamentary privilege.  Lord Burns was addressed on them. However, the advocate depute confirmed that parties were agreed that the court’s decision on the admissibility of what appeared at pages 22 to 25 of the transcript should determine the admissibility of the other passages. It is accordingly unnecessary for us to say anything specifically about these other passages.

[23]      We shall accordingly allow the appeal and recall Lord Burns’s interlocutor of 9 February 2015 in so far as repelling Preliminary Issue Minute 3. The evidence identified at paragraph 4.6 of the preliminary issue minute shall not be admissible at the appellant’s forthcoming trial.