Public Law

Former No. 10 Communications Director Andy Coulson has been detained by Strathclyde Police on suspicion of committing perjury. It’s a source of some irony that Mr Coulson is suspected of having committed perjury in the course of the High Court trial of Tommy Sheridan for… perjury.

A person commits perjury where he wilfully and unequivocally makes a false statement on oath or by affirmation in any judicial proceedings.

It’s reported that Andy Coulson was detained at his home in London at 6.30 this morning, and arrived at a police station in Glasgow at 3.30 this afternoon. From the time of his detention Mr Coulson became the subject of Scotland’s criminal procedure which is very different from the regime operating in England and Wales.

In England and Wales a suspect may be arrested on suspicion of having committed an offence. However in Scotland, a suspect is detained  in such circumstances.

Detention is a power short of arrest which the police in Scotland can use to take an individual into their custody to enable them to carry out further investigations. Before detaining a person, a police officer must have reasonable grounds for suspecting that person has committed or is committing an offence punishable by imprisonment. If prison is not a sentencing option, a person cannot be detained.

A person detained by the police can be held for a maximum of 12 hours, with the possibility of extension up to a further 12 hours. Mr Coulson will be glad to hear that since October 2010, a detained person in Scotland has had the right to a private consultation with a solicitor prior to and at any time during questioning at a police station. Before that time the police could hold a suspect for up to 6 hours with no access to legal advice.

Another key point for Mr Coulson to note: in Scotland protection from self-incrimination includes the right to silence when asked questions by the police. The Scottish courts are not entitled to draw an adverse inference from the silence of the accused during police questioning. In England the courts can draw that inference.

Mr Coulson has been detained as part of Strathclyde Police’s Operation Rubicon which is investigating phone hacking and perjury. (I was going to attach a link to the relevant page of the Strathclyde Police website but, not surprisingly, the site appears to be experiencing difficulties today).

At the conclusion of their investigation the Police will send a report to the Crown Office and Procurator Fiscal Service. The Crown will then make a decision on prosecution taking into account whether there is sufficient evidence of wrongdoing, and whether prosecution would be in the public interest. 

Certainly the Crown answered “yes” on both points in deciding to prosecute Tommy Sheridan in 2010.

Paul Marshall

Partner at Brodies LLP
Paul leads Brodies’ Corporate Crime and Investigations team. He has more than a decade of experience conducting and managing internal investigations for clients who suspect that something has gone wrong within their business. He advises and support clients facing investigation by the police and specialist regulators
Paul Marshall