Petitioner: M C MacKenzie; Drummond Miller LLP

Respondent: A Edwards, Advocate Depute; Crown Agent

12 December 2013

[1] In this petition to the nobile officium, I accept that the sheriff was entitled to form the view that the petitioner had prevaricated, despite clear warnings from the bench. However a five-judge bench in Robertson and Gough v HM Advocate 2008 SCCR 20 set out certain procedural safeguards which should be followed in such cases. In particular, as the Lord Justice Clerk explained:

"[90] It is wrong in principle that a judge should find any party to be in contempt without having given him the opportunity to receive legal advice, to be represented in court and to be heard on the matter (cf R v K (1984) 78 Cr App R 82, at page 87; BK v The Queen (1995) 129 DLR (4^th) 500) ...

[92] In view of the possible consequences, the judge should give the suspected contemnor adequate time to consult with his legal representative in private and to prepare his response. In due course, the judge should give him or his legal representative a full opportunity to make representations on fact and law, and, if need be, to adduce evidence, before he decides whether or not a contempt has been committed.

[93] Having heard submissions on the matter, the court must make a judgment on the facts and on the law. The facts may be capable of more than one interpretation ... In the case of prevarication, the trial judge is best placed to decide, from the nature of the witness's evidence and from his demeanour, whether there may have been prevarication. If that appears to be a possibility, he should consider whether the unsatisfactory aspects of the evidence are explicable on some other basis ...

[94] The court must then decide whether the facts proved constitute contempt ...

[95] If the judge then makes a finding of contempt, he must give the contemnor the opportunity to apologise and to prepare and make representations in mitigation of penalty ... [emphases added]"

[2] In the present case, the petitioner began giving her evidence at 12 noon on Monday 12 August 2013. As the sheriff notes in paragraph [2] of his report, she very quickly began to prevaricate. Details of the prevarication are provided. The sheriff adjourned the trial, warned the petitioner about the consequences of committing both prevarication and perjury, told her that he believed that she was engaging in prevarication, and made it possible for her to be represented by Mr Laverty. Mr Laverty spoke to the petitioner, and subsequently advised the sheriff that he had made clear to her the risks she was running. Mr Laverty confirmed that she now fully understood the consequences of committing perjury and of prevaricating.

[3] The petitioner's evidence then continued. Her police statement was put to her. However as the sheriff explains in paragraphs [10] and [12] of his report, at that stage she "briefly purged her contempt after having received advice from the duty solicitor, but in cross-examination and re-examination resumed her earlier prevarication. She should have been a straightforward direct eye witness to an assault on her then partner by someone she had known for a number of years, an assault which took place in broad daylight on a city street ... during cross-examination and re-examination ... she continued to prevaricate with a series of inconsistent answers, most of which were untrue."

[4] The sheriff then explains in paragraphs [7] and [8] of his report:

"[7] At the end of the day's evidence, [the petitioner] was called back to the dock, represented by Mr Laverty, and I was told by the depute procurator fiscal that the Crown did not intend to proceed against her. I then told her that she was formally being held in contempt of court on account of her continuing prevarication [emphasis added].

[8] Mr Laverty addressed me to the effect that part of [the petitioner's] difficulty was that certain phrases in the statement it was said she had made to the police did not comprise the sort of language she would have used. At the time of the incident, she was addicted to drugs. She had taken at least three different types of drugs as well as her prescribed medicine. She had become confused in the course of cross-examination. She could vaguely recall speaking to the police, but could not recall the content. She had recently managed to sort out her life and had distanced herself from her past group and did not wish to return there. She had a fixed address and had come to court with the intention of giving evidence to the best of her ability. She had become confused. I remanded her in custody pending the conclusion of the trial."

[5] Further evidence was heard from other Crown witnesses, and from the accused himself. In paragraph [10] of the report the sheriff emphasises that "without [the petitioner] giving clear evidence of an assault and identifying the assailant there would not have been any corroboration of the identity of the assailant". He reiterates in paragraph [12] the steps he took, as follows:

"[12] At the conclusion of her evidence, and in the absence of the jury, and having been told by the Crown that they did not intend to proceed against her, I formally held her in contempt on account of her prevarication, heard from Mr Laverty on her behalf, having done so determined to remand her until the conclusion of the case and deal with her then. [After the jury brought back a verdict of guilty against the accused, the petitioner] was then brought before the court with Mr Laverty to assist her. He told me that her overnight remand had made a significant impression upon her. She now appreciated that the confusion she had shown in giving her evidence had got her where she was now. She had a fixed address. She herself had been the victim of an assault which might go some way to explaining her confusion. She had not had her prescribed medication. She was still an addict but was working with an agency to address her habit. She herself had not recently come to the adverse attention of the police. She was then admitted to bail on the standard conditions of bail for the preparation of a criminal justice social work report until 10 September ... [emphasis added]"

[6] The difficulty which arises from the sequence of events outlined in the sheriff's report is simply this: it would appear from paragraphs [7], [8], and [12] of the report that although the petitioner was represented by the duty solicitor Mr Laverty, and although Mr Laverty was given full opportunity to speak to and advise the petitioner, and also at a later stage to address the court in mitigation, Mr Laverty was not given an opportunity to address the court on the central question as to whether or not a formal finding of contempt should be made, contrary to the procedures set out in paragraphs [90] and [92]-[94] of Robertson and Gough cit sup. Standing the clear requirements set out in paragraphs [83] to [100] of Robertson and Gough, and in particular the procedural safeguards set out in paragraphs [90] and [92]-[94], the petitioner's solicitor should in my opinion have been given an opportunity to make submissions (for example, that the petitioner had purged her contempt by giving evidence which the jury appeared to have accepted). The solicitor should also, if he wished, have been given an opportunity to lead any evidence thought necessary.

[7] In my view, the procedural safeguard which was omitted was so fundamental that the finding of contempt made against the petitioner on 13 August 2013 must be set aside, as must the sentence of 12 months. Towards the end of the hearing of the petition on Thursday 12 December 2013, the court adjourned to consider matters. The court then reconvened and gave a ruling setting aside the finding of contempt and the sentence of 12 months, indicating that written reasons would follow. This opinion records my reasons.

Petitioner: M C MacKenzie; Drummond Miller LLP

Respondent: A Edwards, Advocate Depute; Crown Agent

12 December 2013

[8] The petitioner was cited as a witness for the Crown in a case which concerned an allegation of a serious assault having been inflicted on a man who was known to her. On 12 August 2013, she gave evidence. In his report, the sheriff states that:

"[2] ... virtually from the outset she was prevaricating, telling the jury that at the relevant time she had had 'a really bad drug problem' ".

She accepted that she had spoken to the police the day that the assault occurred and she was "not lying" when she did so but said she was "in a state when she saw the blood" and she said she did not know if she had told the police the truth but could have done so.

[9] At that point, the sheriff intervened. He adjourned the trial and warned the petitioner of the consequences of perjury and prevarication. He told her that he believed she was engaging in prevarication and he would afford her the opportunity to be represented by a solicitor, Mr Laverty.

[10] Subsequently, Mr Laverty advised the sheriff that he had made clear to the petitioner the risks she was courting and that she fully understood the consequences of committing perjury and prevarication. She then resumed her evidence and her police statement was put to her. She accepted that what was in it was what she had told the police and that it "must have been" the truth. In cross examination, she said she was on her way to pick up a methadone prescription at the relevant time, that she was in a bad state, that she had no recollection of giving a statement to the police, that she was angry at the time and might have done so and that she might have told the truth but she could not remember. She did, however, say she remembered the accused getting out of a car that arrived at the locus. The petitioner was not warned about prevarication in the course of her cross examination or otherwise during this chapter of her evidence. In re- examination she said that she thought she had told the police the truth.

[11] At the end of the evidence that day, the petitioner was called back to the court and placed in the dock . She was represented by Mr Laverty. What happened next was that the sheriff told her that she was formally being held in contempt of court on account of her continuing prevarication. He gave no prior warning of his intention to do so. In particular, he did not articulate what she had done or said what he considered might amount to contempt of court nor did he give any opportunity to the petitioner or her solicitor to make any representations prior to deciding whether or not to conclude that she had been in contempt of court.

[12] In so doing, the sheriff failed to follow the clear guidance provided by this court in the case of Robertson and Gough v HMA 2008 SCCR 20, particularly at paragraphs 88- 95, in respect that he did not indicate that he was considering whether or not to find the petitioner in contempt in the light of a specified aspect of her conduct, allow her time to take legal advice on that issue and thereafter allow either her or her solicitor to address the court on the issue of whether or not she was in contempt of court before, if he was nonetheless satisfied that she had been in contempt, hearing any relevant mitigation.

[13] Subsequently, the accused was convicted. The Crown could not have proved its case without evidence from the petitioner of the fact of the assault and her identification of the accused as perpetrator - the jury must have accepted the petitioner's evidence about these matters, as set out in her police statement which means, in turn, that the sheriff must have been satisfied that she had adopted it as her evidence in court. If he had not been satisfied of that, it could not have become evidence in the case and the Crown would not, it appears, have had a sufficiency. Contrary to what is suggested by the sheriff in his report, it cannot be right to regard matters as being that it was only her statement to the police that was of any moment as if she did nothing in court to assist. Importantly, it was the petitioner's evidence in court that made her prior statement evidence in the case. Thus, whatever prevarication she may or may not have engaged in, the jury had, on the basis of her testimony, evidence before them of important details arising from the adoption by her of her police statement into her evidence and, furthermore, were evidently able to find them to be credible and reliable.

[14] The sheriff explains that, in his view, although the petitioner had briefly "purged her contempt" immediately after having been given advice about prevarication, she thereafter returned to gross and deliberate prevarication. He had not, however, in fact found her in contempt at the initial stage. Nor did he give her or her solicitor the opportunity to respond to his allegation that she had subsequently engaged in gross and deliberate prevarication. Further, the sheriff prays in aid that in Dundee, which is like a village at times, there is an element among the criminal fraternity to which the petitioner belongs which prefers to operate outwith societal norms and with little regard to the process of justice. Even if those observations were well founded - and I would add that there was no material before us which shows that they were - they were irrelevant to the task he had to perform which was, having raised in his own mind the issue of whether the petitioner ought to be found to have been in contempt of court, to give her fair notice and afford her the opportunity to respond.

[15] As is explained by your Ladyship in the chair, the court's ruling was given at the end of the hearing on 12 December 2013. In the above circumstances, I had no hesitation in agreeing that the prayer of the petition should be granted by setting aside both the finding of contempt and the sentence of 12 months imprisonment.

[16] No doubt the sheriff was understandably frustrated by the fact that an eye witness to an assault appeared to be inexplicably unwilling rather than unable to give a straightforward account of what and who she saw at the relevant time. Frustration, however, gives rise to the risk of a rush to judgment which, for all the reasons explained in Robertson and Gough must be guarded against, principally because an injustice may be done. There was no need for the sheriff to rush to deal with the contempt issue here and no excuse for not affording the petitioner a proper hearing which is what, essentially, occurred. A wiser course might have been to refrain from addressing his concerns at all at that anxious and, perhaps, heated stage and wait until after the jury's verdict which, in the event, would have enabled him to reflect, calmly, on whether or not the matter required to be addressed at all. If it did then the Robertson and Gough procedure could have been followed at that stage.

Petitioner: M C MacKenzie; Drummond Miller LLP

Respondent: A Edwards, Advocate Depute; Crown Agent

12 December 2013

[17] I am in agreement with your Ladyship in the Chair and Lady Smith as to the result and disposal for the reasons given in both opinions.

[18] I do not wish to be thought as over-critical of an experienced sheriff, aware of his local sheriffdom and its problems, who has made a procedural mistake in the heat of the day, when we in the Appeal Court have the luxury of time to reflect. It might have been better to have awaited the verdict and then done nothing. It is easy to fall into error and while we have to apply the clear rules which are set out in Robertson and Gough, I am ever mindful of the sympathetic words of Lord Justice Clerk Aitchison in Mills v HMA (1935 JC 77) quoted by Lord Russell in Docherty v HMA 1945 JC 89.