Scottish Court of Session Decisions

Lord President—In addition to the apology which the prisoners have just tendered through their counsel, there arrived in Edinburgh by this morning's post a letter addressed to myself (as Lord Justice-General) and to the Lords of Session, dated 2nd June and signed by them, in the following terms:—“We respectfully beg to express to your Lordships our deep regret at having disregarded the interdicts pronounced against us by the Court, and to offer to your Lordships our sincere apology. We undertake to conform to the orders of the Court, and to show every respect for its decisions.” By the courtesy of one of His Majesty's Junior Ministers, I personally received in the middle of the afternoon of the 2nd a telegram announcing that such a letter had been written, but the letter itself did not reach Edinburgh or my hands until this morning. Further, I was informed yesterday that a note addressed to the Court had been handed to my clerk. Why it was not lodged in the ordinary way 1 do not know; that will require to be done now. But in this note the respondents further tender their humble apology for having disobeyed the interdict, undertake to comply with the orders of the Court in every respect, and crave the Court to remit the unexpired portion of their sentence, and to order their release.

I think it may be as well to clear away one or two misconceptions which appear to prevail in connection with this matter. In the first place, a sentence of imprisonment on petition and complaint for breach of interdict is the sentence of the Court that pronounces it, and no application with regard to it can be dealt with except by that Court. No individual judge has the right or power to deal with the interlocutor which this Court in either of its Divisions has pronounced, and it is quite improper to approach any individual judge with such an object in view. In the next place Mr Morton used a phrase which is in common use, but which is used most unhappily in relation to matters such as this. He spoke of this prosecution as one for contempt of Court. The phrase “contempt of Court” does not in the least describe the true nature of the class of offence with which we are here concerned, and which is prosecuted in the Civil court by petition and complaint with the concurrence of the Lord Advocate. The offence consists in interfering with the administration of the law in impeding and perverting the course of justice. The malversation of an officer of Court is an example of it. Another and often venial example is the publication in the press of references to a pending litigation calculated to prejudice one of the parties or to bias the jury. A third and a much more serious instance is where people take upon themselves to break the law and then to defy its administration—in short, directly to impede and to pervert the course of justice. The currency of the phrase is particularly regrettable, inasmuch as it seems to have encouraged the idea that all that has to be done by a person who has, however deliberately, committed this class of offence and then wishes to avoid the consequences of his conduct is to present an apology as for an offence against the dignity of the Court. It is not the dignity of the Court which is offended—a petty and misleading view of the issues involved—it is the fundamental supremacy of the law which is challenged. That is why conduct of this kind is properly treated as deserving of criminal punishment. It is intolerable in any civilised and well-ordered society. Further, not only has no one the power to purge himself of a deliberate offence by saying he is sorry, but the mere circumstance that he presents a belated expression of contrition has with regard to the public aspect of the matter almost no importance at all. There is ample opportunity in the procedure by petition and complaint for repentance before sentence is pronounced. The appeal is simply to the clemency of the Court. There is no palliation of the offence at all, and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the Court and saying “I realise my transgression and apologise for it,” however sincerely such an apology may be made.

Now in the present case the position of matters is (1) that the prisoners after serving ten days' imprisonment have presented an unqualified expression of repentance, and given an undertaking to desist from law-breaking of this kind in future, and (2) the complainer in the prosecution (in view of changed circumstances in which this Court has no concern) has informed us at the bar that he is no longer in the position of requiring the protection which the original interdict gave him. These circumstances do not necessarily draw after them any release of the prisoners from their present incarceration. The general interest in the vindication of public law is not less important than the protection of private legal rights. But it appears that in one unreported case in 1908 this Court has in apparently similar circumstances pronounced an order for release. It must not be assumed that in all cases which present the two features above described an order for release will be obtained. On the contrary, the public interest in the maintenance unobstructed of the course of justice remains, and will and must be maintained by this Court in the future as in the past. But where it is made clear that the private rights against which the original offence was committed no longer require protection,

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