APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 2639/98
OPINION OF THE COURT
delivered by LORD KIRKWOOD
BILL OF SUSPENSION AND LIBERATION
PROCURATOR FISCAL, Kilmarnock
Complainer: Scott; Brodies, Edinburgh
Respondent: Menzies, Q.C., A.D.; Crown Agent
21 May 1999
The complainer is Rachel Logan who seeks suspension of a finding that, when appearing as a witness at Kilmarnock Sheriff Court on 26 October 1998, she was in contempt of court by prevaricating in the evidence which she gave. The bill also seeks suspension of an order that she should serve sixty days imprisonment for such contempt on the ground that the order was incompetent.
The first issue for our determination is whether the sheriff was entitled to make the finding that the complainer was in contempt of court. She appeared as a Crown witness in the summary trial of Richard Stevenson on a charge of fraud. The bill states that the complainer was serving a sentence of imprisonment, that she had been transported to court in a prison van and that Mr. Stevenson was transported in the same van. The complainer alleges that she was threatened by the accused in relation to the evidence which she was to give at the trial. When she gave evidence the sheriff concluded that she had prevaricated and at the conclusion of the trial he made a finding that she had been in contempt.
Section 155(1) of the Criminal Procedure (Scotland) Act 1995 provides inter alia that if a witness in a summary prosecution prevaricates in his evidence he shall be deemed guilty of contempt of court and be liable to be summarily punished forthwith for such contempt. Section 155(2) provides that where punishment is summarily imposed, "the clerk of court shall enter in the record of the proceedings the acts constituting the contempt or the statements forming the prevarication".
The order finding the complainer to have been in contempt was minuted in the following terms: "The Court held the accused (sic) to be in Contempt of Court Prevarication".
The minute did not record the statements forming the prevarication but we have a report from the sheriff which gives details of the evidence given by the complainer which led him to make the finding that she had been prevaricating. The accused had been charged with fraud in respect that he had falsely pretended that he had been the victim of a theft by housebreaking. The complainer had given two accounts of events which were mutually exclusive. She had initially stated that she had received a telephone call from hospital to pick up the accused's belongings and that she had gone to his house, collected his belongings and taken them to her house. Later in her evidence-in-chief she had stated that he had brought his belongings to her house and asked her to keep them. In cross-examination, she stated that the first account which she had given was the truth. The sheriff then pointed out to her that the two accounts which she had given were mutually exclusive and he told her what prevarication was and that it was a crime. At that point the complainer collapsed and had to be carried from the witness box. When she recovered and resumed her evidence she stated that she had intended to tell the truth, which was that the accused had brought his belongings to her house, but he had threatened her in the police van and told her to give the false version which she had also given in court.
Counsel for the complainer submitted that the minute had failed to set out in detail exactly what the complainer had said to constitute contempt. In particular, the minute had failed to record the statements which had formed the prevarication. That being so, there had been a failure to comply with the terms of section 155(2) of the Act and accordingly the minute was incompetent and the finding of contempt should be suspended. Counsel went on to submit that, in any event, the evidence which the complainer had given, as set out in the sheriff's report, did not justify the finding that she had prevaricated in her evidence. She had admittedly given two separate versions of how the accused's belongings had got to her house, but she had not refused to answer any questions which had been put to her. When the sheriff had intervened and pointed out to her that the two versions were mutually exclusive she had collapsed and when she resumed her evidence she had explained that she had given one of the versions because the accused had threatened her, and she then told the truth. In the circumstances her conduct fell short of prevarication. Even if she had initially prevaricated, she had in effect purged her contempt by telling the truth after the sheriff had intervened. She had not persisted in putting forward the two competing accounts. In the circumstances the sheriff had not been entitled to hold that she had been prevaricating.
In reply, the advocate depute accepted that on the face of the minute there had not been adequate specification of the statements by the complainer which were alleged to have formed the contempt, but he founded on the case of Riaviz v. Howdle 1996 S.C.C.R. 20. That case had dealt with section 344(2) of the Criminal Procedure (Scotland) Act 1975 which was in substantially the same terms as section 155(2) of the 1995 Act. In Riaviz the court had held that it could have regard to the information contained in the sheriff's report. In the present case the sheriff's report contained sufficient details of the statements made by the complainer which led to the finding that she had prevaricated and was in contempt of court. The advocate depute further submitted that the way in which the complainer had given her evidence, as set out in the sheriff's report, clearly justified the finding that she had prevaricated. She had given one version of how the belongings got to her house and then she had given a second version. She had then gone back to the first version and, after the sheriff had intervened, she had reverted to the second version. That conduct on her part when giving evidence had constituted prevarication and the sheriff's finding that she was in contempt of court had been justified.
While the minute refers simply to prevarication and does not set out the statements made by the complainer which formed the prevarication we have reached the conclusion, having regard to the case of Riaviz v. Howdle, supra, and the reasoning set out in the judgment, that we are entitled to have regard to the account of the complainer's evidence which is contained in the sheriff's report. In Riaviz the minute fell short of what was required by section 344(2) but the Lord Justice General (Hope) observed (at page 24) that the purpose of the statutory provision was to secure an accurate record for the purposes of an appeal and that it would be unreasonable for the court to close its eyes to the contents of the sheriff's report when examining the facts alleged in the bill. He went on to state that, where a report was available, the court was more likely to find in the report, rather than in a minute taken by the clerk at the time, the detail of the matter which was found to have constituted the contempt at the time of the trial. In the present case the minute states that the finding of contempt was made on the basis that the complainer had prevaricated and the sheriff's report contains sufficient detail to enable us to decide whether or not the finding of contempt was justified. Turning to consider the evidence which the complainer gave, we note that when she was asked how the accused's belongings got to her house, she twice gave one version and twice gave a quite different version. It is clear, from the explanation which she gave, that she was all along aware that one of the versions which she gave to the court was not the truth. In the circumstances we are satisfied that the sheriff was entitled to hold that she had prevaricated and to make a finding that she was in contempt of court.
Counsel for the complainer submitted that the sheriff's order that she should serve sixty days imprisonment was incompetent as in terms of section 155(1) of the 1995 Act any period of imprisonment could not exceed twenty-one days. We are satisfied that the order made by the sheriff was incompetent and we shall therefore suspend that order. Counsel informed us that, following the finding that she was in contempt, the complainer had spent three days in custody. She had explained that her conduct in the witness box had been due to the fact that she had been threatened by the accused, who had also been in the prison van which took her to court, and the fact that she had collapsed in court had indicated that she was in genuine fear. Further, she had finally told the truth. In the circumstances, and particularly having regard to the nature of the contempt, the circumstances in which it occurred and the period which the complainer has spent in custody, we shall substitute an admonition.