APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk Lord Osborne Lord Johnston Lord Philip Lord Penrose |
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06 OPINION OF THE LORD
JUSTICE CLERK in the PETITION of STEWART ROBERTSON Petitioner; against HER MAJESTY'S ADVOCATE Respondent; and the BILLS OF SUSPENSION by STEPHEN PETER GOUGH Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the petitioner: Shead, Miss Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good
Law, Edinburgh
For the Crown: Solicitor General
(
I Introduction
[1] The
petitioner has invoked the nobile officium of the court in craving it to set aside a finding of
contempt of court made against him at Paisley sheriff court, failing which to
quash the punishment imposed on him on the ground that it was excessive. The competency of this remedy is not disputed
(Mayer v HM Adv, 2005 JC 121, at para
[49]).
[2] The
complainer has presented four Bills of Suspension relating to findings of
contempt of court made against him in
II The
Petition of Stewart Robertson
The facts
[3] On
[4] According
to the sheriff's report, the petitioner failed repeatedly to address the
questions put to him by the procurator fiscal depute. When a previous inconsistent statement was
put to him, he denied having made it. At
least twice he indicated that he was not interested in helping the court. The procurator fiscal
depute and the sheriff warned him several times about
prevarication. The sheriff told him that
he was considering the making of a finding of contempt. He continued the matter overnight so that the
petitioner could receive legal advice.
On the following morning, the Crown accepted reduced pleas by both
accused.
[5] Thereafter
a solicitor, Mr Grady, addressed the sheriff on behalf of the petitioner. The sheriff reports that it was clear to him
that the solicitor was in full possession of the facts and that he and the
petitioner were fully aware of the nature of the complaint. The solicitor did not deny that the
petitioner had prevaricated. The sheriff
reminded him that the petitioner had been reluctant to give evidence at all and
had said that he was not prepared to help the court. The solicitor then described a background of
intimidation by way of explaining the petitioner's conduct.
[6] The
sheriff concluded that this was a clear case of contempt. Having ascertained that the Crown did not
propose to take action against the petitioner, he made a formal finding of
contempt.
[7] On
8 May the sheriff imposed a sentence of six months imprisonment. We are not concerned with that aspect of the appeal
at this stage.
The petition
[8] The
petitioner admits that he prevaricated.
He says that he had been threatened and was frightened of the
consequences of giving evidence. He sets
out a history of threats made to him before the trial by both accused, by the
first accused's wife and by a number of
strangers. None of this is corroborated.
[9] The
petitioner avers that his right to a fair hearing under article 6(1) of the European
Convention on Human Rights (the Convention) was violated; that when he appeared
before the sheriff, he and those representing him were not informed in detail
of the accusation against him, and therefore that he was not in a position to
defend himself properly against the accusation.
III The
Bills of Suspension by Stephen Peter Gough
The facts
[10] The complainer is persistently naked in public. He has twice walked naked from
[11] On
[12] On
The findings of contempt
The first
finding
[13] On
[14] The sheriff considered that there were no factual questions to
be determined and that he could properly deal with the matter of contempt
himself. He found the complainer to be
in contempt and sentenced him to three months' imprisonment.
The second
finding
[15] On
The third
finding
[16] On
The fourth
finding
[17] On
The Bills of Suspension
Bill (1) -
the first finding: the complainer's
averments and the sheriff's report
[18] The essential averments are that when the case called in the
complainer's absence, Sheriff Liddle stated that if the
complainer subsequently appeared in court naked, he would find him in contempt
and would deal with it in the most serious way; and that when the complainer
later appeared in court naked, the sheriff indicated that the complainer was in
contempt.
[19] Sheriff Liddle gives us a different
account. He reports that when the defence solicitor first informed him that the
complainer proposed to appear naked, he said that he did not consider that
appropriate and that he did not consent to its happening; that he might
consider anyone who did so in spite of that to be prima facie in contempt; and that in making these comments he
intended to afford the complainer every opportunity to consider his proposed
actions and the possible consequences.
He decided that he could not proceed with the trial in the absence of
the complainer merely because he was expected to be disruptive. He ruled that the complainer would have to
appear and then, if it should be appropriate, be excluded. After a further adjournment the complainer's
solicitor told the sheriff that the complainer insisted on appearing
naked. The complainer then appeared
naked in the court. His solicitor told
the sheriff inter alia that the
complainer considered nakedness to be natural and acceptable and that he
understood that the court was a public place where formal proceedings were
conducted.
[20] The sheriff says that he informed the complainer that he
considered him to be prima facie in
contempt and allowed a further adjournment.
When the complainer persisted, the sheriff considered whether he should
refer the question of contempt to another sheriff, but took the view that he
was entitled to, and ought to, deal with the matter himself. He found the complainer to be in
contempt. He adjourned the case yet
again to give the complainer an opportunity to consult with his solicitor and
to purge his contempt. When the court
re-convened, the complainer was not present.
His solicitor said that the complainer did not accept that he was in
contempt and was not offering to purge his contempt. The solicitor was given an opportunity to
speak in mitigation.
[21] The sheriff then ordered that the complainer should be brought
into court. In his presence the sheriff
gave his solicitor a further opportunity to speak in mitigation. The solicitor repeated what he had already
said. He consulted with the complainer
in response to certain questions from the sheriff, but to no avail.
Bill (2) -
the second finding: the complainer's
averments and the sheriff's report
[22] The complainer avers that when the case was called in his
absence, Sheriff Lothian said that if the complainer refused to dress, he would
find him to be in contempt; and that when the complainer's solicitor advised
the sheriff at the cells that the complainer did not intend to dress, the
sheriff immediately indicated that the complainer was in contempt.
[23] Sheriff Lothian gives us a different account. He reports that he warned the complainer,
through his solicitor and directly, that his conduct might constitute a contempt. The
appellant persisted. This sheriff too
disputes the allegation that he had formed the view that any appearance of the
complainer naked in court would amount to contempt. He says that the only view that he formed at
that stage was that it might. He asked
the complainer's solicitor for an explanation of the complainer's conduct, but the
solicitor did not give one. As is clear
from his report, the sheriff made the finding of contempt only after having
given the complainer's solicitor the opportunity to be heard.
Bill (3) -
the third finding: the complainer's
averments
[24] The complainer avers that when the case was called in his
absence, Sheriff Mackie said that if he refused to dress, she would find him to
be in contempt; and that when the court convened at the cells, she asked his
solicitor to reiterate what contempt was and to convey her view that refusal to
dress would be contempt. The complainer
indicated that he understood, but did not agree that being naked was
contemptuous.
[25] Sheriff Mackie gives us a different account. She reports that the complainer's solicitor
told her that the complainer did not intend to dress. She asked him to tell the complainer that she
required him to be dressed appropriately.
She said nothing at that stage about finding him to be in contempt. The complainer refused to dress. When she convened the court at the cells, she
asked his solicitor if the complainer was aware of her requirement that he
should dress for his appearance in court.
She was told that he did not intend to comply. She then enquired whether he was aware that
to refuse to comply might amount to contempt.
She was told that he was. She
asked his solicitor if he had advised the complainer of the potential
consequences of a finding of contempt. He
told her that he had. Nevertheless, she
asked him to remind the complainer of them.
He did so in her presence. She
asked if the complainer would now dress.
He refused. She then found him to
be in contempt.
Bill (4) - the fourth finding: the
complainer's averments and the sheriff's report
[26] The complainer avers that when he entered the dock undressed,
intimated a plea of not guilty and was refused bail, Sheriff McIntyre indicated
that he considered the complainer to be in contempt.
[27] Sheriff McIntyre gives us a different account. He reports that before the case was called he
was alerted to the fact that the complainer was refusing to dress. He instructed the sheriff clerk to advise the
complainer that he would have to dress, otherwise he might be considered to be
in contempt. The complainer refused to
dress. The sheriff adjourned the case to
enable the complainer to put on clothing provided by the administration. The complainer refused to do so. The sheriff told his solicitor that he
considered this conduct to be potentially contemptuous. He gave him an opportunity to consult with
the complainer. Thereafter the solicitor
submitted that the complainer's actings did not
constitute contempt as he did not intend any disrespect to the court. He conceded that on occasions the complainer
wore clothes. In this case too the
sheriff denies that he said that the complainer's conduct would amount to
contempt. He says that he indicated to
the solicitor, before hearing his submissions, that to appear in court without
clothes was not acceptable and might amount to contempt of court. He gave the appellant an opportunity to
consult and to make representations before he made a finding of contempt. He considered that there were no facts to be
determined. The facts spoke for
themselves. It was therefore not appropriate
to pass the matter to a colleague.
Legal
propositions for the complainer
[28] In all four Bills, the complainer avers that to appear in court
undressed does not amount to a contempt of court. He also avers that justice was neither done
nor seen to be done since the sheriff had formed a view, prematurely and in the
absence of submissions on the point, that to appear in court naked would be
contempt; that the complainer was denied the substance and the appearance of a
fair hearing; that in view of the sheriff's earlier remarks, the well-informed
observer would have concluded that there was a real risk that the sheriff could
not deal fairly with the question of contempt or the question of punishment;
that, those remarks having been made, the sheriff should have declined
jurisdiction; that the sheriff denied the complainer a fair hearing by
adjudicating on the question of contempt instead of remitting the matter to
another sheriff; and that accordingly the sheriff breached the complainer's
rights under article 6 of the Convention and, in any event, acted oppressively
and contrary to the complainer's right to a fair trial at common law.
IV The nature of contempt of court
[29] Contempt
of court is constituted by conduct that denotes wilful defiance of, or
disrespect towards, the court or that wilfully challenges or affronts the
authority of the court or the supremacy of the law itself, whether in civil or
criminal proceedings (HM Adv v Airs, 1975 JC 64, Lord Justice General Emslie at p 69; cf Manson, Petr,
1977 SCCR (Supp) 176, at p 178).
[30] The power of the court to punish contempt is inherent in the
system of administration of justice (Hume,
Crimes, II, 138-141;
Stair Memorial Encyclopaedia, vol 6,
para 301; Hamilton v Anderson (1858) 3 Macq 363, LC Chelmsford at p 373). That power is held by every judge (Hume, ibid; Ersk, Inst,
"In all such cases it is in the power and, indeed,
it is the duty of the court, in order to protect the dignity, quietness, and regularity
of its proceedings, and to prevent defiance of its orders, to deal with such
acts of contempt, and it is the practice to do so within the proceedings in
which the contempt was committed, at once, and without the necessity of any
formal complaint, and this applies both to procedure in civil and criminal
causes" (at p 363; cf Macdonald, Criminal Law, 5th ed, at p 266).
In Cordiner, Petr (1973 JC 16) Lord Justice General Emslie described the court's jurisdiction as follows:
"Both the Court of Session and this court [sc the High Court of Justiciary]
have an inherent and necessary jurisdiction to take effective action to
vindicate their authority and preserve the due and impartial administration of
justice" (at p 18).
[31] Despite indications to the contrary in certain nineteenth
century authorities (Mackenzie and Munro
v Magistrates of Dingwall
(1839) 1 D 487, Lord Gillies at p 492; HM Adv v Robertson (1842) 1 Broun
152, Lord Justice Clerk Hope at p 160;
Paterson v Kilgour (1865) 3 M 1119, Lord Deas at p
1123; MacLeod v Speirs
(1884) 5 Coup 387, Lord Young at p 403), contempt of court is not a crime per se.
It is a sui
generis
offence committed against the court itself which it is peculiarly within the
province of the court to punish (Mayer v HM Adv, supra; HM Adv v Airs, supra;
Petrie v Angus, supra). A penalty imposed for contempt of court is
not regarded as a sentence (Criminal Procedure (Scotland) Act 1995 (the 1995
Act), s 307(1), sv "sentence").
V Forms of contempt
[32] In its minor forms, contempt of court may relate only to
disciplinary matters of good order, such as where a spectator's mobile
telephone rings in court (Williams v
Clark, 2001 SCCR 505); or the accused, a juror or a witness is drunk (Gillies v McClory,
1994 SCCR 886; Elizabeth Yates, (1847) Ark 238;
John Allan, (1826) Shaw
172; cf Duffy v Munnik,
1957 (4) SA 390 (T)), or a spectator takes a photograph of the judge, accused
or jury (R v D (Contempt of Court:
Illegal Photography), [2004] EWCA Crim
1271). In more serious cases there is a
direct challenge to the authority of the court and the integrity of its
proceedings; for example, where a witness refuses to take the oath or affirm (Wylie v HM Adv, 1966 SLT 149). Contempt may also involve the commission of a
crime such as perjury (Manson, Petr, supra;
Gordon, Criminal Law, 3rd ed, vol 2, para 50.04), breach of
the peace or an attempt to pervert the course of justice.
[33] We are not concerned in these cases with civil contempt, which
consists in the breach of a court order or of an undertaking given in foro and is
punishable primarily for coercive reasons
(eg Graham v Robert Younger Ltd, 1955 JC
28); nor with contempt committed outside the court, nor with contraventions of
the Contempt of Court Act 1981.
[34] We are concerned only with contempt committed in facie curiae and directed at the
administration of justice. Contempt of
this kind occurs in most cases during the proceedings and in front of the
judge; but there may be cases where the offending conduct is so closely related
to the proceedings in time and place as to be considered part of them; for
example, where a party molests a juror or a witness in the precincts of the
court (cf R v Goult, (1983)
76 Cr App R 140; Halsbury, Laws
of England, vol 9(1), para 406).
[35] One of the most persistent forms of contempt in facie curiae is prevarication, which
the law distinguishes from the crime of perjury (Hume, i. 380; Gordon, loc cit). Prevarication is punishable as a contempt of
court under section 155(1)(d) of the 1995 Act. Hume describes prevarication as
"the wilful concealment of the truth; which is next in degree to perjury, and seems chiefly to differ from it in the inferior boldness of the culprit; who though desirous to mislead the Judge, and make a false impression, has rather chosen to compass this object in the way of an artful and tricking oath, than by the direct averment of utter falsehoods; or, if he has ventured on any such, has not persisted in them till the close of his oath. This sort of guilt is chiefly to be gathered from the evasive and equivocal answers of the witness, the inconsistency of the different parts of his oath, and his affected ignorance and want of memory, with respect to things which he cannot but know; more especially if he is at last driven from all these shifts, and is constrained to emit a true, though, taken on the whole, an incoherent and a contradictory deposition" (ibid).
Alison describes it as "wilful
contradiction on oath" (i. 484). Lord
Young's description of it in MacLeod v
Spiers (supra) probably best conveys the sense
of the term.
"It is a loose and indefinite term, which may mean
many different things short of perjury; the general idea which it conveys is
manifest unwillingness candidly to tell the whole truth, fencing with questions
in such manner as to show reluctance to disclose the truth, and a disposition
to conceal or withhold it" (at p 405; cf Nicholson v Linton, (1861) 4 Irv 115; Adam Baxter
and Ors (1867) 5 Irv 351; McNeilage, Petr, 1999 SCCR 471).
[36] Prevarication may amount to perjury, but it need not involve
the giving of false evidence. It is
committed where, for example, the witness obstructively takes issue with the
form of every question put to him; or pretends not to understand the question;
or omits to mention a material fact until he is specifically asked about
it. Even where the witness does tell a
lie, the lie may be on a point that is immaterial or on which he cannot be
competently examined. That may be
prevarication, but it will not be perjury (cf. Hume, i. 369; Alison, i.
469-470; Gordon, op cit, paras 47.13-47.16).
Even if the prevarication does involve perjury, it may not be possible
to bring a prosecution; for example, where the witness gives two contradictory
accounts, but it is impossible to know which is untrue (eg Logan v. McGlennan,
1999 SCCR 584, at p 586F).
[37] Prevarication by crucial witnesses, often as a consequence of
intimidation, is a constant and long-standing problem in the criminal courts
(Hume, ii. 140; Alison, i. 485, ii. 549).
It often imperils a well-founded prosecution. When it is seen to succeed, it encourages others
to intimidate witnesses.
[38] Summary punishment by the court has been the recognised method
of dealing with prevarication for over two hundred years (Hume, i. 380; ii.
140; Alison, i. 484), although certain judicial misgivings have been expressed
about it since 1884 (cf Lord Young in MacLeod v Spiers, supra, at p 400; Blake v MacDonald, (1890) 2 White 477, at p
479).
[39] The threat of summary punishment may sometimes be sufficient to
lead the offending witness to tell the whole truth; but in many cases the
witness would prefer to suffer whatever punishment the court may impose sooner
than incur the displeasure of the accused and his associates. In such cases the punishment imposed by the
court is essentially a matter of retribution, reflecting the consequences of
the witness's conduct on the course of the trial and on the administration of
justice.
VI Applicability of the
Convention
[40] Article 6, so far as relevant to these cases, provides as
follows:
"1 In
the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law ...
2 Everyone
charged with a criminal offence shall be presumed innocent until proved guilty
according to law
3
Everyone charged with a criminal offence has the following minimum
rights:
(a) to be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of
his defence;
(c) to defend himself in person or through legal assistance of
his own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot
understand or speak the language used in court."
Article 10, so far as relevant, provides
as follows:
"1 Everyone
has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority and
regardless of frontiers ...
2 The
exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
[41] It is conceded by the Crown that contempt of court should be
treated as if it were a crime for the purposes of article 6, not least because
of the severe penalties that may be imposed for it (cf
Engel v Netherlands, (1976) 1 EHRR 647, at para 82).
VII The
procedures by which contempt of court is dealt with
Procedure before 1975
[42] According to long-established practice, contempt of court may
be punished by the court summarily (Hume, ibid),
or on the presentation of a petition and complaint by an interested party such
as the Crown (Alison, ii. 549; HM Adv v
Airs, supra). If the facts constituting the contempt also
amount to a crime, it is open to the Crown to prosecute the offender (Alison, ibid).
[43] Until 1975, the court to a great extent had a free hand in its
manner of dealing with contempt. In the
case of prevarication, the principle was that the court should leave the
witness in no doubt as to the nature of the contempt of which he appeared to be
guilty before it made a formal finding (Wylie
v HM Adv, supra). If the witness was
then willing to tell the whole truth, he could be permitted to resume his
evidence on a truthful basis. In such a
case the court could in its discretion hold that the contempt had been
purged. Where the court was satisfied
that the witness had prevaricated, it could make a finding of contempt there
and then and could defer the question of punishment until the end of the
trial. In many cases the court arranged
for the witness to be legally represented before a penalty was imposed; but the
practice was not invariable.
Wylie v
HM Adv (1966 SLT 149)
[44] The petitioners in this case were cited as Crown
witnesses. They refused to take the
oath. The trial judge found them to be
in contempt instanter and sentenced them both to three years
imprisonment at the end of the trial. It
was held that the trial judge had adopted the well-recognised procedure that
had been adopted for years on such occasions.
He had given the petitioners ample and repeated opportunities to explain
their attitude and left them in no doubt that they were being treated as being
in contempt and would be punished. The
court considered it appropriate that the trial judge should investigate the
matter on the spot and, if satisfied that a contempt
had been committed, impose such punishment as he thought fit. There was much to be said for his doing so at
once, since he knew exactly how the matter had arisen and was in the best
position to judge how grave or flagrant the contempt was (at p 151).
HM Adv v Airs (1975 JC 64)
[45] The respondent in this case was a journalist who was called as
a Crown witness in a conspiracy trial.
He said that at a certain place he had had a meeting and a conversation
with a certain person. When asked by the
advocate depute whether he saw that person in court, he explained that before
his meeting with the person in question he had given an undertaking that on no
account would he at any time reveal who was at the meeting. He was again asked the question and he again
refused to answer it. The judge directed
the respondent to answer the question under sanction that if he disobeyed, he
would be in contempt. The respondent
said that he understood the position and again refused to answer.
[46] The judge directed that the matter should be dealt with as a contempt by another judge.
Thereafter the Crown brought a petition and complaint to the High Court
craving it to enquire into the matter complained of and, on the same being
admitted or proved, to inflict on the respondent such punishment as the nature
of the case would seem to require. It
was held that in the absence of a prosecution arising from the incident, the
court had power to deal with the contempt when it was brought to its notice by
the Lord Advocate or any other interested party, and that the petition was both
competent and relevant (ibid, Lord
Justice General Emslie at pp 68-71).
Lord Justice General Emslie's Memorandum of 1975
[47] In consequence of HM Adv v
Airs (supra), Lord Justice General Emslie issued
a Memorandum dated
Lord Justice General Cullen's Memorandum of 2003
[48] After the Convention became part of Scots law, questions arose
as to the compatibility of the 1975 Memorandum with article 6. Lord Justice General Cullen therefore issued
a revised Memorandum dated
"1 The
appropriate time to make a judicial finding of contempt will vary
according to the circumstances. In the case of prevarication, before the
judge considers the making of a finding of contempt he should encourage the
witness to speak up while there is still opportunity to do so, such as by
giving him or her, outwith the presence of the jury, a firm warning and a clear
explanation of the likely consequences of continued prevarication, and
affording the opportunity to reflect on the situation and return to court and
purge the contempt by giving further evidence.
2 No
finding of contempt should be made before the person in respect of
whom the judge is considering
making the finding has had the opportunity to obtain legal advice and
representation (and if necessary legal aid) in regard to whether a finding of
contempt should be made and, if so, with what consequences to that person.
3 In
the case of contempt by a witness or by a party to the proceedings in
a trial, whether civil or
criminal, before a jury, it is important to avoid creating prejudice in the
mind of the jury. It may be appropriate
for the judge to consider dealing with the matter at the conclusion of the
day's proceedings after the jury have left the court.
4 Whether
the alleged contemnor should be detained in custody or
released subject to appropriate
conditions, and, if to be detained in custody, for how long, should be given
careful consideration. It is
inappropriate for detention to be longer than is necessary. It may be possible for the hearing of the
question of contempt to take place in 24 hours or less. It should not be assumed that it is necessary
to continue the hearing until the end of the trial. The witness should not be ordered to be
detained in the presence of the jury.
5 If
the offence is one of prevarication, the judge should normally
ascertain whether the Crown intends
to bring criminal proceedings against the offender before deciding to deal with
the matter himself as a contempt. It may
be necessary to consider the making of an order in relation to the media.
6 If
the judge is of the opinion that a person has committed a contempt, a
judicial finding to this effect
should be made at the appropriate time and, as a matter of record, entered in
the minutes.
7 It
is normal for the presiding judge to decide if conduct amounts to
contempt. There may, however, be circumstances in which
exceptionally it would be inappropriate for him or her to do so. In these circumstances the judge should remit
the case to the High Court at
8 Although
an act of contempt should be dealt with expeditiously, it is
much more important that it be
dealt with - and be seen to be dealt with - fairly and objectively. When the judge has made a finding of contempt
he or she should consider whether to adjourn the matter to enable the offender
to consider his position. The period of
adjournment will depend on the circumstances.
It will be a matter for the judge to determine, in the light of the
circumstances of each case, whether the offender should be detained in custody
until the adjourned diet, or released subject to such conditions as the judge
considers appropriate. If the offender
is under 21 years of age, has never before been in prison or is under social
work supervision, the judge should bear in mind the propriety of obtaining a
social inquiry report.
9 At
the adjourned diet the offender should be given a full opportunity
to apologise for his conduct
and making a statement in mitigation. If
a custodial sentence is imposed, it should normally be made to run
consecutively to any sentence the offender is currently serving, and this would
be a factor in determining severity."
Lord Justice General Cullen's Note of 20 February 2004
[49] After the decision in Kyprianou v
"In these circumstances it
is clear that the updated Memorandum on Contempt of Court which I issued on
In the meantime my advice is
that, where a presiding judge would otherwise have proceeded to decide whether
the conduct of a person during a trial constitutes a contempt of court, he or
she should remit to another judge to deal with that question, and, if a finding
of contempt is made, what action should be taken in respect of it. The presiding judge should not make an order
for the detention of the person unless this is unavoidable."
VIII The
Kyprianou decisions
Kyprianou v
[50] The applicant was a defence lawyer in a trial before the
" ... It is not easy, through
words, to convey the atmosphere which Mr Kyprianou
had created since, quite apart from the unacceptable content of his statements,
the tone of his voice as well as his demeanour and gestures to the court, not
only gave an unacceptable impression of any civilised place, and a courtroom in
particular, but were apparently aimed at creating a climate of intimidation and terror within the court. We are not exaggerating at all in saying that
Mr Kyprianou was shouting at and gesturing to the
court.
It was pointed out to him
that his statements and his behaviour amounted to contempt of court and he was
given the opportunity to speak. And
while there was a reasonable expectation that Mr Kyprianou
would calm down and that he would apologise, Mr Kyprianou,
in the same tone and with the same intensity already referred to, shouted, 'You
can try me.'
Later, after a long break,
Mr Kyprianou was given a second chance to address the
court, in the hope that he would apologise and mitigate the damage caused by
his behaviour. Unfortunately, at this
stage Mr Kyprianou still showed no signs of regret
or, at least, of apprehension for the unacceptable situation he had
created. On the contrary, he stated that
during the break he wondered what his crime had been, merely attributing his
behaviour to the 'very tense atmosphere.'
However, he was solely responsible for the creation of that atmosphere
and, therefore, he cannot use it as an excuse.
Mr Kyprianou
did not hesitate to suggest that the exchange of views between the members of
the bench amounted to exchange of 'ravasakia,' that
is, 'love letters' (See: 'Dictionary of
Modern Greek - Spoudi ravasaki
(Slavic ravas), love letter, written love
note'). And he accused the court, which
was trying to regulate the course of the proceedings, as it had the right and
the duty to do, of restricting him and of doing justice in secret.
We cannot conceive of
another occasion of such a manifest and unacceptable contempt of court by any
person, let alone an advocate.
The judges as persons, whom
Mr Kyprianou has deeply insulted, are the least of
our concern. What really concerns us is
the authority and integrity of justice.
If the court's reaction is not immediate and drastic, we feel that
justice will have suffered a disastrous blow.
An inadequate reaction on the part of the lawful and civilised order, as
expressed by the courts, would mean accepting that the authority of the courts
be demeaned.
It is with great sadness
that we conclude that the only adequate response, in the circumstances, is the
imposition of a sentence of a deterrent nature, which can only be imprisonment.
We are well aware of the
repercussions of this decision since the person concerned is an advocate of
long standing, but it is Mr Kyprianou himself who,
through his conduct, brought matters to this end."
This decision was upheld by the
Supreme Court.
A Chamber
of the Second Section of the Strasbourg court held that there had been a lack
of impartiality in both the objective and subjective senses, and therefore a
violation of article 6 (at para 47).
These were its reasons.
"34 The
Court considers that the decisive feature of the case is that the judges on the
court which convicted the appellant were the same judges before whom the
contempt was allegedly committed. This
in itself is enough to raise legitimate doubts, which are objectively
justified, as to the impartiality of the court - nemo judex in causa sua.
35
For the Government to aver that the judges who convicted the applicant
cannot be considered complainants in the proceedings and had no personal
interest in the relevant offence, but were simply defending the authority and
standing of the court is, in the opinion of the Court, theoretical. The reality is that courts are not impersonal
institutions but function through the judges who compose them. It is the judges who interpret a certain act
or type of conduct as contempt of court.
Whether this is so has to be assessed on the basis of the particular
judges' own personal understanding, feelings, sense of dignity and standards of
behaviour. Justice is offended if the
judges feel this to be so. Their
personal feelings are brought to bear in the process of judging whether there
has been a contempt of court. Their own
perception and evaluation of the facts and their own judgment are engaged in
this process. For that reason, they
cannot be considered to be sufficiently detached, in order to satisfy the
conditions of impartiality, to determine the issues pertaining to the question
of contempt of their own court ...
36
In this connection, the Court notes that, in their decision, the judges
of the Assize Court acknowledged that their 'persons' were 'insulted
gravely' by the applicant, even though they went on to say that this was
the least of their concerns, and emphasised the importance for them of
upholding the authority and integrity of justice.
37 The
Court considers that in situations where a court is faced with misbehaviour on
the part of any person in the court room, which may amount to the criminal
offence of contempt, the correct course dictated by the requirement of impartiality
under Article 6(1) of the Convention is to refer the question to the competent
prosecuting authorities for investigation and, if warranted, prosecution, and
to have the matter determined by a different bench from the one before which
the problem arose. In fact, with the
exception of
On the question of subjective
impartiality the Chamber said -
"41 The lack of impartiality is evidenced by the intemperate reaction of the judges to the conduct of the applicant, given their haste to try him summarily for the criminal offence of contempt of court without availing themselves of other alternative, less drastic, measures such as an admonition, reporting the applicant to his professional body, refusing to hear the applicant unless he withdrew his statements, or asking him to leave the court room. In this respect an additional important factor is the severe punishment - immediate imprisonment - which they imposed on the applicant while stating, for example:
i)
'It is impossible for us to imagine another occasion of such a manifest
and unacceptable contempt of court by any person ... '
ii)
'If the Court's reaction is not immediate and drastic, we feel that the
blow to justice will be disastrous.'"
Kyprianou v
[51] The
case was referred to the Grand Chamber of the court at the request of the
Government of Cyprus. At that stage comments
were received from third parties, including the Government of the
[52] It held unanimously that there had been a lack of objective
impartiality for the following reasons.
"127 The present case relates to a contempt in the face of the court, aimed at the judges personally. They had been the direct object of the applicant's criticisms as to the manner in which they had been conducting the proceedings. The same judges then took the decision to prosecute, tried the issues arising from the applicant's conduct, determined his guilt and imposed the sanction, in this case a term of imprisonment. In such a situation the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench ...
128 The
Court therefore finds that, on the facts of the case and considering the
functional defect which it has identified, the impartiality of the
[53] The Grand Chamber also held by a majority that there had been a
lack of subjective impartiality because (1) the trial judges acknowledged that
they had been deeply insulted as persons by the applicant; (2) their emphatic
language conveyed a sense of indignation and shock; (3) they proceeded to
impose a sentence of imprisonment enforced immediately; and (4) they expressed
the opinion early on in their discussion with the applicant that they
considered him to be guilty of contempt.
In these respects they failed sufficiently to detach themselves from the
situation (paras 130-131). The Grand Chamber considered that this
conclusion was reinforced by the speed with which the proceedings were carried
out and by the brevity of the exchanges between the applicant and the judges
(para 132).
Submissions on behalf of the petitioner and the complainer
General
[54] Counsel for the petitioner and the complainer submitted that in
each of these cases the procedure had been deficient. The procedure to be followed should depend on
the nature of the penalty that might be imposed. There could be no objection to a judge's
determining a question of contempt ex proprio motu where the result
would be only a regulatory or disciplinary sanction (Ravnsborg v
Particular submissions on behalf of
the petitioner
[55] Counsel accepted that prevarication was a contempt of
court. The sheriff had told the
petitioner that he had concluded that he was in contempt. He gave him no proper opportunity to answer
that charge and to present a reasoned defence.
He predetermined his guilt. The
hearing on 8 May was concerned only with penalty. The observations of the Grand Chamber in Kyprianou v
Particular submissions on behalf of
the complainer
[56] Counsel submitted that to appear naked in a court of law was
not an act calculated to offend the authority and dignity of the court. It was not an unjustifiable interference with
the administration of justice. The
complainer believed that to be naked in public was a fundamental freedom. He expressed that belief in his naked
walks. Demonstrative acts and the
physical expression of feelings and opinion constituted "expression" within the
meaning of article 10 of the Convention (X
v
[57] In each case the sheriff had decided that the complainer's
conduct constituted contempt before hearing submissions on the point. The case should have been remitted the matter
to another sheriff to decide the question of guilt and, if appropriate, the
question of penalty. Kyprianou v
Submissions for the Crown
[58] The Solicitor General accepted that article 6 applied in each
case. He submitted that the sheriff was
not obliged to remit the question of possible contempt to another sheriff. Counsel for the petitioner and the complainer
had misinterpreted the Kyprianou
decisions. Whatever may have been the
true interpretation of the offending remarks in that case, they were
disrespectful and were directed at the judges personally. In the present cases the contempt, if any,
was directed against the administration of justice generally. The decision of the Chamber in Kyprianou v Cyprus (No 1) (supra, at para 37) was based on the erroneous understanding
that Cyprus was the only party to the Convention in whose system contempt of
court would not be dealt with by a different bench. In Prosecutor
v Slobodan Milosevic - contempt proceedings against Kosta
Bulatovic (13 May 2005), a decision under article
14 of the International Covenant on Civil and Political Rights, which was in
similar terms to those of article 6 of the Convention, the International
Criminal Tribunal for the Former Yugoslavia recognised that the decision in Kyprianou v Cyprus
(No 1) related only to contempt directed against the judge
personally.
[59] The statements of the court in Kyprianou v Cyprus (No 1) (at para
37) could no longer be regarded as authoritative in light of the decision of
the Grand Chamber in Kyprianou v Cyprus
(No 2) (supra). The Grand Chamber thought it neither
necessary nor desirable to review generally the law on contempt and the
practice of summary procedure in
[60] It was not necessarily inconsistent with article 6 for a trial
judge to determine summarily whether a contempt of court had occurred. Whether the sheriffs were objectively
independent and impartial in these cases depended on the facts and
circumstances (
[61] A judge would generally have to disqualify himself where he was
the immediate target of an attack on his moral or physical integrity (Magistrates of Kirkcaldy v Dougal, 1679 M 1984, referred to in Ersk, Inst, I.
ii, 8; cf Kyprianou v Cyprus
(No 2), supra); but where the
contempt did not consist of a direct insult to the judge, the principle that no
one should be a judge in his own case did not apply (Wilkinson v S, [2003] 1
WLR 1254).
[62] A judge would also be right to disqualify himself where the
essential facts were in dispute and where he himself had witnessed the events
in question (Mayer v HM Adv, supra). There might be other
cases where that would be appropriate. Conversely,
there could be cases falling within these categories where, in the particular
circumstances, a fair minded and informed observer would conclude that there
was no possibility of bias if the judge were to exercise summary jurisdiction; for example, where
an individual appearing in court habitually directed verbal abuse towards the
bench.
[63] Subject to such exceptions, where a summary determination of
contempt was made, the fair-minded and well informed observer would be aware of
the traditions of judicial integrity and of the judicial oath (Helow v Advocate General, 2007 SC 303, at
para [35]) and would conclude that there was no possibility that the judge was
biased.
Conclusions
The general approach of the court
Article 6
and the common law of
[64] Counsel for the petitioner and the complainer has based his
submissions on article 6. He has made
only passing reference to the common law.
It seems at times that contemporary practitioners believe that the
Convention introduced the principle of fair trial into Scottish criminal
procedure. Scottish criminal procedure
is founded on that principle. It is the
duty of this court constantly to reassess what fairness requires and to
re-examine the presuppositions on which existing rules and practices are based. Where it is recognised that an accepted
aspect of procedure is unfair, this court puts the matter right. In this way Scots law has extended its
protection to accused persons in relation to such matters as pre-trial
publicity (Smith v Ritchie & Co (1892)
20 R (J) 52; Hall v Associated Newspapers
Ltd, 1979 JC 1; Stuurman v HM Adv, 1980 JC 111) police
questioning (Chalmers v HM Adv 1954 JC 66), and detention of
witnesses in open court (eg
Hutchison v HM Adv, supra, and McAllister and McLaughlan v HM Adv, 27
November 1975, there referred to). In
its consideration of the procedure for dealing with contempt of court, the court's
appreciation of fairness has developed stage by stage from the robust approach
of a century ago. In this case, it is
open to us to develop our procedure further.
[65] In some respects the incorporation of the Convention has
enhanced the fairness of our system directly, for example by enabling the court
to consider questions of unfairness in the operation of specific legislative
provisions that previously it had to take as it found (eg N v HM Adv, 2003 JC 140). More
generally, it provides a fresh focus for reconsideration of domestic issues, as
any Convention of its status must, and in that way influences our thinking in the
development of the common law. It is not
disputed that article 6 applies in each of these cases and that it requires the
court to show both subjective and objective impartiality; but that requirement
has long been recognised as an essential feature of the right to a fair trial
at common law. In my view the fair trial
issues raised in these particular cases can be satisfactorily resolved at
common law.
The
inherent power of the court to punish contempt
[66] The primary submission of counsel for the petitioner and
complainer is that in every case in which imprisonment is a possibility, it
should not be competent for the court to deal with the matter ex proprio motu. Instead, the
suspected contemnor should be dealt with by way of a prosecution, so that he
may have the safeguards that the law extends to all accused persons, failing
which the matter should be dealt with by petition and complaint. In my opinion, this submission is
unsound. The determining criterion of
there being a possibility of imprisonment is unworkable. Every contempt is
potentially punishable by imprisonment. Even where the presiding judge has the impression that imprisonment
is not an option, considerations unknown to him, such as the contemnor's
criminal record, may suggest that it is.
[67] More fundamentally, the submission of counsel fails to
recognise the different provinces of the court and the Crown in relation to
contemptuous behaviour. It is for the
Crown to decide whether an instance of contempt amounts to a crime and, if so,
whether it is in the public interest to prosecute it. But the court has interests of its own in the
enforcement of standards of decorum in its proceedings and in the eliciting of
full and truthful evidence. The nature
of the judicial process and the primacy of the rule of law make it essential
that every court should have power to vindicate its authority against
contemptuous challenges, and to do so by punishing contempt at its own hand (Johnson v Grant, 1923 SC 789, Lord President Clyde at pp 790-791; cf IH Jacob, The
Inherent Jurisdiction of the Court, (1970) 23 CLP 23, at p 27). By dealing with contempt promptly the court
can bring home to the contemnor the seriousness of his conduct and deter
others, and can impose a penalty with a first-hand appreciation of the
seriousness of the offending conduct.
[68] The summary punishment of prevarication as a contempt of court fulfils
a valuable and necessary purpose (Wylie v
HM Adv, supra, at p 151). The immediacy of the threat of punishment
gives the best prospect that a prevaricating witness will think better of his
attitude and tell the whole truth. To
such a witness the prospect of being prosecuted or being dealt with later by
another judge or sheriff is less compelling (cf Mayer v HM Adv, supra, at para [56]).
[69] Finally, I consider that the submission of counsel, in
referring to the safeguards given to accused persons, wrongly implies that
adequate procedural safeguards cannot be devised in cases where the court
punishes contempt at its own hand.
The right
to a hearing
[70] Before Wylie v HM Adv (supra), it was possible for a contemnor to be found guilty of
contempt and to be sentenced for it without having had the benefit of legal
advice or representation. In Wylie v HM Adv (supra) it was
recognised that the contemnor had a right to be legally represented before any
punishment was imposed; but not to be
legally represented on the primary question whether a contempt had been
committed. The Memorandum of 1975
followed that principle. The Memorandum
of 2003 recognised that there is a right to have legal advice and representation
at the stage at which a finding of contempt is being considered (supra, para 2). That is now beyond dispute.
Were the
petitioner and the complainer denied a fair hearing?
[71] The petitioner alleges
that when he appeared before the sheriff those representing him were not
informed in detail of the accusation against him, with the result that he was
unable to defend himself properly against it (stat 4). This serious allegation is not supported by
evidence. It is positively contradicted
by the sheriff in his careful Report. I
accept the sheriff's account without hesitation. If the petitioner had been at any
disadvantage in the respects alleged by him, I would have expected that his
solicitor, Mr Grady, who is the instructing agent in the petition, would have
complained of that to the sheriff. It is
apparent that Mr Grady was in full possession of the facts and had a sound
understanding of the legal issues. In
the petition itself the petitioner admits that he
prevaricated and avers that he refused to answer questions because he was
intimidated (stat 3). I regret that the allegation
on which the petition is founded was ever made.
Since I hold it proved that the petitioner and his solicitor knew
exactly on what basis the question of contempt was being considered by the
sheriff and had ample opportunity to prepare a response on both fact and law,
the only issue, in my view, is whether the sheriff was entitled to deal with
the question of contempt himself.
[72] The complainer alleges, without supporting evidence, that in each case the sheriff concluded that he was in contempt before hearing any submissions on the point. In each case, the sheriff has contradicted this allegation and I accept the sheriff's word. In all four cases the complainer was represented by a solicitor. The sheriff explained to him, as was obvious, that a finding of contempt was a possibility. The solicitor had every opportunity to make submissions on the point before the sheriff made that finding. In my view, the allegation against the sheriff on which each of these Bills is based should not have been made.
Did the
conduct complained of constitute contempt?
[73] It is not disputed that the petitioner's prevarication
constituted a contempt of court. It was
of a most serious kind. He did not seek
to purge his contempt at any stage. The
Solicitor General investigated the question why the Crown accepted the reduced
pleas at the trial. While acknowledging
that the Crown case was weak, he told us that the petitioner's prevarication
had been a relevant factor in the Crown's decision.
[74] In each of the cases involving the complainer it is submitted
that his conduct was not contemptuous. I
do not agree. In my opinion, the
appearance of anyone in court naked, whatever crimes that may constitute, is
unquestionably a contempt. The court is entitled to enforce standards of
decency and decorum in the dress and demeanour of those who appear before it,
whether as witnesses, lawyers, jurors or accused. Conduct such as the complainer's is not only
indecorous. It can offend, upset or
alarm those present. It can distract
those engaged in the trial from the essential issues. It adds to the difficulties of the presiding judge
or sheriff. In all of these ways it
impairs the administration of justice.
[75] It is fallacious, in my opinion, to suggest, as counsel for the
complainer did, that
the complainer had no mens rea because
he sincerely believed that his conduct was not contemptuous. It is sufficient to establish mens rea that he
intended to do that which, in the eyes of the law, constitutes contempt.
[76] Counsel for the complainer submitted that to appear in court
naked is a right guaranteed by article 10 of the Convention as an aspect of
freedom of expression. He did not define
for us with any precision what the complainer was expressing; but in any event,
the law of contempt does not interfere with the complainer's freedom to express
whatever that is. Article 10 gives a
person the freedom to express his views; but counsel has not established in
this case that the complainer has been prevented from expressing whatever view
he seeks to express (Stevens v United
Kingdom, (1986) 46 DR 245; Kara v United Kingdom, (1999) 27 EHRR CD
272). The law of contempt merely restricts
his right to express that view in his chosen manner (Jones v Carnegie, 2004 JC 136, at para [27]). If he seeks to express the view that an
individual has the right to be naked at all times and in all places, there is
nothing to prevent his doing so orally or in writing while remaining properly
dressed.
[77] In my view, article 10(1) has not been shown to apply. But if it does, the Bills of Suspension fail
under article 10(2), which recognises that an individual's freedom under
article 10(1) may be legitimately curtailed for the prevention of disorder or
crime. By appearing in court naked, the
complainer committed the crime of public indecency (Webster v Dominick, 2005
JC 65); he committed a breach of the peace, and in at least one of these cases
he committed an offence under section 27(1)(b) of the
1995 Act by breaching a bail condition that he should not appear in public in
Scotland with his private parts exposed.
He also disrupted the administration of justice. In my view, the article 10 submission in these
cases was entirely without merit.
Should the sheriff have
dealt with the matter ex proprio motu
in each of these cases?
[78] In my opinion, the submission of counsel for the petitioner and
the complainer that these cases should have been remitted to another sheriff is
misconceived. It proceeds on a
misunderstanding of the Kyprianou decisions (supra) and in particular of paragraph 37 of the judgment of the
court in Kyprianou v
[79] Where a contempt committed in
facie curiae is directed at the judge personally, for example where a missile
is thrown at him or he is insulted or threatened (R v
[80] In my opinion, the submission of counsel for the petitioner and
the complainer is contrary to sound principle.
When the conduct is directed at the administration of justice, it is
positively the duty of the presiding judge to decide whether it is contemptuous. The judge has seen the conduct at first hand and
can best assess how serious it is. In
the case of prevarication, the judge can assess the quality of the witness's
evidence in the context of the issues in the trial and, it may be, the evidence
that has preceded it (Wylie v HM Adv,
supra, Lord Justice General Clyde at
p 151). The judge must give effect to
these advantages. Having observed the
procedural safeguards to which I shall refer, he should decide whether a contempt has occurred and, if so, deal with it appropriately. If he proceeds in this way, the deterrent
effect of any penalty imposed is all the greater. As this court observed in Mayer v HM Adv (supra), in the case of contempt by a witness there is much to be
said for the view that, in the administration of justice, prompt and effective
steps should be taken to deal with the situation (per Lord Penrose at para [66]).
[81] Such a procedure does not, in my view, make the judge a judge
in his own cause. Since the contempt is not
directed at him, I can see no reason why an impartial and informed observer,
knowing of the judicial oath, should see any appearance of bias if the
presiding judge deals with the matter himself (cf Wilkinson v S, supra; R v Dodds, [2003] 1 Cr App R 3). In each of the present cases the contempt was
of that nature. These cases are
therefore materially distinguishable from Kyprianou (supra). In my opinion, the sheriff
acted correctly in each case.
[82] Lord Justice
General Cullen's Note of 2004, framed in the light of Kyprianou v
[83] In my opinion, where a question of contempt arises in the
course of a trial, the judge should be conscious of the ever-present danger of
over-reaction. The power to deal
summarily with contempt should be used sparingly and with restraint. It should be exercised only out of necessity
to protect the integrity of the court's procedures, and preferably only after
time for reflection. In all questions of
this kind, judges should be cautious in their approach and keep a sense of
proportion. Words spoken in heat are sometimes
best ignored (cf R
v Powell, (1994) 98 Cr App R 224, Staughton LJ at
p 228).
[84] In the case of prevarication, the trial judge may in his
discretion let the examination of the witness proceed further to see if the
witness thinks better of his attitude (Green
v Smith, 1988 JC 29, Lord Justice Clerk Ross at p 32). In this way he gives the witness an
opportunity to purge his contempt.
[85] When the judge decides that prima
facie a contempt has been committed, he should
decide whether the contempt appears to have been directed at him personally. If it has been, or if he is any doubt on the
point, he should not deal with the matter himself.
[86] If the judge
is satisfied that the apparent contempt is of a kind with which he may
competently deal, fairness requires that he should observe the following
procedural steps.
[87] If the case is
being heard before a jury, the judge should normally deal with the matter
outwith the presence of the jury. In the
case of prevarication, the witness should not be detained in the presence of
the jury (Hutchison v HM Adv, 1984
SLT 233).
[98] If a custodial penalty is imposed, the judge should normally
order that it should be consecutive to any sentence that the contemnor is
serving. The length of the current
sentence may be a factor relevant to penalty.
[99] There may be exceptional cases where, even though the contempt
is not directed personally against the judge, it would be inappropriate for him
to deal with the matter himself. I have
in mind cases where, for example, the judge has to make a finding on disputed
facts as to which he himself was a witness (eg Mayer v HM Adv, supra) or
where he may have compromised himself by prematurely expressing a concluded
view (R v Schot
and Barclay, [1997] 2 Cr App R 383).
In such cases it would be contrary to the concept of fairness if the
trial judge were to deal with the matter himself.
[100] All of these steps should be recorded in
detail in the minutes of the trial.
[101] Since all of these cases were correctly
dealt with by the presiding sheriff ex proprio motu, the question of
the procedure of remitting to a colleague does not arise. Lord Justice General Cullen's Note of 2004 does
not specify what in that event the appropriate procedure should be. Counsel for the petitioner and the complainer
offered no suggestions as to the details of the procedure that he proposed. In Mayer
v HM Adv (supra) a question of
contempt arose in which the facts were disputed. This court remitted "the issue of the
petitioner's disputed contempt to a member of the court to resolve, with the
benefit of such evidence as can be placed before the court, and to report" (at
para [69]). It appears that the detailed
procedure that followed on that remit was left to the discretion of the
judge.
[102] Since procedure of this kind will now be
necessary in certain cases and since such cases may arise at all levels of the
legal system, it is desirable that a detailed code of procedure should be
devised urgently. It is not opportune
that we should attempt to write such a code by way of obiter dicta in the present cases.
There are numerous matters of procedure that will have to be considered:
for example, the citation of witnesses, rights of compearance,
the leading of evidence on disputed questions of fact, the lodging of
productions, and so on. In my opinion,
this procedure should be prescribed by Act of Adjournal
after the usual process of consultation with the Rules Councils.
Disposal
[103] I propose to your Lordships that we should refuse the petition so
far as it craves the court to quash the finding of contempt and continue it for
further consideration of the penalty imposed.
[104] I propose that we should refuse the first and fourth Bills so far
as they crave the court to quash the finding of contempt and continue them for
further consideration of the penalties imposed.
[105] I propose that we should refuse the second and third Bills simpliciter, no
punishment having been imposed in those cases, and return them to the sheriff
to proceed as accords.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk Lord Osborne Lord Johnston Lord Philip Lord Penrose |
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06 OPINION OF LORD OSBORNE in the PETITION of STEWART ROBERTSON Petitioner; against HER MAJESTY'S ADVOCATE Respondent; and the BILLS OF SUSPENSION by STEPHEN PETER GOUGH Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the petitioner: Shead, Miss Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good
Law, Edinburgh
For the Crown: Solicitor General
(
[106] I am in
complete agreement with the observations of your Lordship in the chair and with
the course proposed. There is little
that I would wish to add. However, I
think it right to emphasise that the domestic Scottish law relating to criminal
procedure has for many years been based upon the principle that any person
accused of crime in
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk Lord Osborne Lord Johnston Lord Philip Lord Penrose |
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06 OPINION OF LORD JOHNSTON in the PETITION of STEWART ROBERTSON Petitioner; against HER MAJESTY'S ADVOCATE Respondent; and the BILLS OF SUSPENSION by STEPHEN PETER GOUGH Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the petitioner: Shead, Miss Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good
Law, Edinburgh
For the Crown: Solicitor General
(
[107] I have had the
opportunity of reading the Opinion of your Lordship in the chair and I am in
complete and general agreement.
[108] I should add,
however, that I remain concerned as to the precise mechanisms that may have to
be employed in relation to a contempt which cannot, for the reasons your
Lordship has given, be heard by the judge in whose court it has taken
place. As your Lordship has indicated,
further consideration is necessary to determine how and by what means the
matter is referred to another judge, and, furthermore what investigatory
powers, if any, that latter judge should have, particularly in relation to
consulting the judge against whom the original contempt was directed.
[109] On the more
general question of interaction between Article 6 of the European Convention on
Human Rights and the issue of dealing with contempt, I too would wish to
emphasise that I do not consider Article 6, especially in relation to a fair
trial, adds anything to or detracts in any way from the long-established rules
in Scotland in relation to the issue of fair trial. Such has been enshrined in our law for
centuries and while Article 6 may have re-emphasised the issue of bias, for
example, or partiality, and also highlighted the question of timescales in the
conduct of criminal proceedings, the fundamental issue of fairness has always
been there to be determined and will continue to be determined, in my view, by
the general rules of the Scots common law.
Continued references in this context to Article 6 to my mind are both
meaningless and superfluous.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk Lord Osborne Lord Johnston Lord Philip Lord Penrose |
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06 OPINION OF LORD PHILIP in the PETITION of STEWART ROBERTSON Petitioner; against HER MAJESTY'S ADVOCATE Respondent; and the BILLS OF SUSPENSION by STEPHEN PETER GOUGH Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the petitioner: Shead, Miss Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good
Law, Edinburgh
For the Crown: Solicitor General
(
[110] I agree that
the petition of Stewart Robertson and Bills of Suspension at the instance of
Stephen Peter Gough should be refused in the way proposed, and for the reasons
set out, by your Lordship.
[111] The entitlement of an accused person to a fair trial before
an independent and impartial tribunal has long been the fundamental principle
on which Scottish criminal law and procedure is based. It has been an important part of the function
of this court to scrutinise the procedure followed in individual cases in order
to safeguard against any erosion of or departure from that fundamental
principle. The Lord Justice Generals'
Memoranda of 1975 and 2003 are results of the exercise of that function. The introduction of Article 6 of the European
Convention on Human Rights into Scots law did not innovate upon the fundamental
principle to which I refer and it is therefore appropriate to consider, as your
Lordship has done, whether the procedure followed in the cases before this
court complied with the established criminal procedure.
[112] It is vital that the court should have the power to protect
its authority and the dignity and order of its proceedings when they are
threatened or challenged. In order to
maintain the integrity of its proceedings, to minimise disruption and, where possible,
to allow proceedings in the course of which a contempt occurs to reach their
proper conclusion, it is necessary for the court to be able to deal summarily
with those who commit acts which may constitute contempt in the face of the
court.
[113] In a system in
which the guilt or innocence of the accused is determined on the basis of
evidence given orally before a jury or a judge it is essential that the court
should have the power to impose sanctions on a witness who prevaricates. It is also necessary that the sanctions
available to the court should not remove from the prevaricator the opportunity
to purge his contempt and to give evidence freely in order that the proceedings
may be brought to a proper conclusion.
Experience has shown that in many cases the nature of the contempt is so
damaging to the administration of justice that imprisonment is the only
appropriate and effective sanction. It
is therefore important that the sanctions which are available to a court
dealing summarily with contempt should include imprisonment.
[114] The petitioner avers in his petition that his
representatives were not informed of the detail of the complaint made against
him. Before this court the point was not
pressed with any vigour, no doubt because the averment was not supported by the
facts. In his report the sheriff informs
us that the petitioner's solicitor was in full possession of the facts and that
he and the petitioner were fully aware of the complaint. This was clear from the fact that the
solicitor did not deny the contemptuous conduct but sought to explain or
mitigate it. In his Bills of Suspension
the complainer alleges that in each case the sheriff concluded that he was in
contempt before he had heard any submissions on the question. Again these averments were not supported by
the facts as narrated by the sheriffs in their reports. It is important that in each of these cases
no finding of contempt was made until the sheriff had given the opportunity to
the complainer's representative to make submissions on the question.
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk Lord Osborne Lord Johnston Lord Philip Lord Penrose |
[2007]
HCJAC 63
Appeal
Nos. MISC151/01
XJ1730/05,
XJ55/06, XJ56/06 and XJ388/06 OPINION OF LORD PENROSE in the PETITION of STEWART ROBERTSON Petitioner; against HER MAJESTY'S ADVOCATE Respondent; and the BILLS OF SUSPENSION by STEPHEN PETER GOUGH Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the petitioner: Shead, Miss Munro; Grady & Co, Glasgow
For the complainer: Shead, Miss
Munro; Good
Law, Edinburgh
For the Crown: Solicitor General
(
[115] I entirely
agree with the observations of your Lordship in the chair. The domestic Scottish law relating to
criminal procedure has long recognised the principle that any person accused of
crime in