Lord Justice General
Lord Nimmo Smith
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
to the nobile officium
EXPRESS NEWSPAPERS PLC
Appellant: Lord Mackay of Drumadoon, Q.C.; Morton Fraser & Milligan
Respondent: Solicitor General; Crown Agent
19 February 1999
In this petition to the nobile officium the petitioners are Express Newspapers PLC ("Express"). In June 1998 the Lord Advocate presented a petition to this court in which he alleged that Express had been guilty of a contempt of court and craved the court, "on the same being admitted or proved", to inflict such punishment as the nature of the case seemed to require. On 2 June the court granted warrant for service and at the hearing on 26 June before the High Court, comprising the Lord Justice Clerk and two Lords Commissioners of Justiciary, counsel for Express accepted that they were liable to be found in contempt of court in terms of Sections 1 and 2 of the Contempt of Court Act 1981. The court accordingly made a finding that Express had been in contempt of court and, having heard counsel in mitigation, the court fined Express £50,000. Express have presented this petition to the nobile officium in order to appeal, not against the finding of contempt, but against the amount of the fine imposed by the court.
This petition first came before a court comprising the Lord Justice General and two Lords Commissioners of Justiciary on 25 September 1998 when it was remitted to a court of five Judges. The decision to remit the case came about in this way. On the earlier occasion neither counsel for Express nor the Advocate Depute expressed any doubt about the competency of seeking to review the decision of the High Court by means of this petition to the nobile officium. For that reason counsel had not prepared submissions on the point and they were therefore not in a position to respond to certain questions raised by the court. In these circumstances the court decided that the matter should be continued so that the question of competency could be explored. It was clearly desirable both that the court should be in a position, if necessary, to deal authoritatively with any previous decisions and that the court should address the substance of the appeal, if the point of competency were decided in favour of Express. As we have explained, the appeal is taken from a decision of a bench of three Judges. The court took the view that, if competent, the appeal should be heard by five Judges.
At the earlier hearing the question which concerned the court was whether the decision of a quorum of the High Court on the matter was final and not subject to review, either by petition to the nobile officium or otherwise. At the hearing before this larger court, we heard helpful submissions from Lord Mackay, Q.C., on behalf of Express on that point and on whether a petition and complaint in a matter of contempt of court required to be heard by a bench of three Judges. He also addressed us on the substance of the appeal. The Crown had lodged written submissions on the first two issues and Lord Mackay rightly described those submissions as displaying a "friendly neutrality" on the part of the Crown. We are grateful to the Crown both for those submissions and for the volume of photocopied authorities. In the result, with the exception of one minor point with which it is unnecessary for us to deal, at the hearing the Solicitor General did not seek to add to Lord Mackay's submissions on the procedural aspects. So far as the matter of sentence was concerned, he limited himself to explaining one aspect of the background to the proceedings for contempt.
We turn first to the question of whether it is competent for a party, who has been found to be in contempt and who has had a punishment imposed on him by a court comprising three Judges of the High Court, to appeal to the nobile officium. In doing so, we remind ourselves that the court which dealt with the petition and complaint, though comprising three Judges, was not the appeal court, but simply the High Court sitting with a quorum of three Judges. It is useful to begin with the statutory provisions which confer finality on certain orders of the High Court.
Section 124(2) of the Criminal Procedure (Scotland) Act 1995 provides:
"Subject to subsection (3) below, every interlocutor and sentence pronounced by the High Court under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever ...."
The subsection is the lineal descendant of Section 72 of the Criminal Procedure (Scotland) Act 1887, through Section 17(1) of the Criminal Appeal (Scotland) Act 1926 and Sections 262 and 281 (a curious doublet) of the Criminal Procedure (Scotland) Act 1975. In its original incarnation the finality provision applied to "all interlocutors and sentences pronounced by the High Court of Justiciary under the authority" of the 1887 Act, which dealt with solemn procedure only. In 1926 that section was made to operate subject to the provisions of the 1926 Act and Section 17(1) of that Act applied the finality provision only to interlocutors "pronounced by the Court under" the 1926 Act and, therefore, only to interlocutors of the appeal court. Although the 1975 Act was a consolidating statute, that limitation appeared at least to lose its force since, in terms of the relevant sections, finality was said to apply to all interlocutors and sentences pronounced by the High Court "under this Part of this Act" - and the "Part" of the 1975 Act in question covered all stages of solemn proceedings. In Section 124(2) of the 1995 Act, however, the limitation re-emerges since the finality provision applies only to interlocutors and sentences pronounced by the High Court under Part VIII - which deals with appeals from solemn proceedings.
For present purposes it is necessary only to consider Section 124(2) of the 1995 Act. There are two distinct but sufficient reasons why Section 124(2) does not apply to the interlocutor pronounced by the High Court in this case. Although the term "solemn proceedings" is not defined in the 1995 Act, it is a well-known term of art which is used in the 1995 Act to describe proceedings on indictment under the provisions in Part VII. The petition and complaint by the Lord Advocate craving a finding of contempt of court against Express does not fall within the scope of such "solemn proceedings". For that reason Section 124(2) does not apply to the order pronounced by the court in the petition and complaint. Secondly, as we have observed already, the court which heard the petition and complaint was not an appeal court. Similarly, the interlocutor and sentence which they pronounced were not pronounced in an "appeal". For that reason also Section 124(2) has no application in this case. The section therefore constitutes no bar to this court reviewing the order pronounced by the High Court on 26 June 1998.
Since the procedure in a petition and complaint is not laid down by the 1995 Act, that Act does not provide any means for reviewing the interlocutor of the High Court pronounced in the course of proceedings on that petition. Express submit, however, that the interlocutor can be reviewed by this court on a petition to the nobile officium. In such a petition the petitioner does not, of course, seek to invoke the powers of the High Court as enshrined in the 1995 Act. Rather, the matter "is extra cursum of the statute and the ordinary practice" (H.M. Advocate v. Lowson (1909) 6 Adam 118, 123 per Lord Ardwall).
The nature of the nobile officium of the High Court was described by Alison, Criminal Law of Scotland Vol. 2, p. 23 in this way:
"The Court of Justiciary has the exclusive power of providing a remedy for all extraordinary or unforeseen occurrences in the course of criminal business, whether before themselves, or any inferior Court" (emphasis added).
In the present case we are concerned with a petition which seeks to remedy what is said to be an error in proceedings in that the High Court imposed an excessive fine on Express. The words which we have emphasised in the passage from Alison show that the nobile officium can be used to remedy defects in proceedings of the High Court itself.
That power of the court to grant a remedy under the nobile officium has not been regarded as unlimited. It is well known that there was no right of appeal against conviction in solemn proceedings before the 1926 Act. Hume had explained (Commentaries Vol. 2, p. 504) that:
"The reversal of judgment, on review in course of law, has relation to the sentences only of the inferior courts. For those of the Court of Justiciary are not subject to revisal in any form of process, either before themselves, or any other tribunal, not excepting even the House of Lords, to which the judgements of all the other courts of justice, of both Scotland and England, may be carried."
The lack of any means by which the court could review sentences in these cases shows that the range of the nobile officium could not extend far enough to provide a remedy there. This particular passage of Hume might be construed narrowly as applying only to review of a "sentence" of the High Court - by which Hume meant "the act of Court pronounced in pursuance of the verdict, and applying the law to the fact, as found by the assize" (Hume, Commentaries Vol. 2, p. 463). A few pages later, however, Hume appears to put the point more broadly when he says (Vol. 2, p. 508):
"Last of all; for the same reasons which hinder the Lords of Justiciary from receiving a petition against any interlocutor of theirs, that Court do not enjoy the power of reviewing their own sentences, or orders, by suspension or reduction, or any other form of process. And this is true, not only of such as are pronounced by the whole Bench of Judges, or a quorum of their number, sitting at Edinburgh, but equally so of the sentence or interlocutor even of a single Judge, given on a Circuit Ayre."
In the light of these passages, when addressing us, Lord Mackay frankly accepted that, if one had regard simply to what Hume wrote, then the nobile officium would not be available to provide a means of reviewing the sentence pronounced by the court of three judges in the contempt proceedings. He submitted, however, that, in order to assess the range of the nobile officium in practice today, the court required to look beyond Hume and to examine more recent developments. These showed that it had become established that the nobile officium could provide a remedy by way of appeal in proceedings for contempt of court.
According to the passage which we have quoted from Alison, the nobile officium exists to provide a remedy in "extraordinary or unforeseen occurrences". One might hesitate to describe the situation where someone wishes to appeal against a sentence imposed for contempt of court as "unforeseen". None the less - and despite the generality of Hume's comment - it is indeed clearly established that the nobile officium can provide a remedy in such cases. In Wylie and Another v. H.M. Advocate 1966 S.L.T. 149 it was held that the court could use the nobile officium to provide a means by which a witness could appeal against a finding of contempt of court and a sentence of imprisonment imposed by the judge in a High Court trial. The nobile officium required to be invoked since no appeal had been provided by statute. The Crown conceded that resort to the nobile officium was competent. The decision in Wylie has never been questioned; rather, the approach has been extended in later cases. A petition to the nobile officium was the means by which an editor, publishers and a journalist successfully appealed against a finding of contempt made by a trial judge in the High Court in Kemp and Others Petitioners 1982 J.C. 29. In George Outram & Co. Ltd. v. Lees 1992 J.C. 17 the court confirmed the approach in Wylie and Kemp and used it as the basis for holding that a petition to the nobile officium was the appropriate remedy for publishers and an editor who wished to appeal against a finding of contempt by a judge in solemn proceedings in the Sheriff Court.
Lord Mackay drew our attention to certain passages from the Report of the Committee on Contempt of Court presented to Parliament by the Lord Chancellor and the Lord Advocate in December 1974 (Cmnd. 5794). The Committee was chaired by Lord Justice Phillimore and the members included Lord Justice Clerk Grant and, after his death, Lord Cameron. As Lord Mackay pointed out, the discussion of the machinery for appeals in solemn criminal proceedings (paragraph 198) referred to the only remedy being by petition to the nobile officium and the Committee recommended that the relevant criminal procedure legislation should be amended to allow such appeals to be taken by way of Note of Appeal. Lord Mackay added that, when Parliament came to enact the Contempt of Court Act 1981, although it was aware of the report of the Phillimore Committee, it had neither suppressed the existing appeal by way of petition to the nobile officium nor substituted any new appeal by note of appeal. Nor had Parliament taken the opportunity of any of the many later criminal procedure Acts to alter the position. In these circumstances we agree with Lord Mackay that we should proceed on the basis that the legislature has been content to leave the matter on the basis established by the court.
In our view the approach in the cases which we have mentioned provides guidance in the present case, even though in this case the finding of contempt was made, and the sentence was imposed, in proceedings on petition in the High Court. We see no reason why the mere difference in the form of proceedings in the High Court should lead to a different result. As Lord Mackay observed, it might almost be a matter of chance in any individual case whether the matter was dealt with by the trial judge himself, either during or at the end of the trial, or by the Lord Advocate raising a petition. The Crown may choose to raise a petition in more serious cases. If, then, an appeal is open in cases where the matter is dealt with by the trial judge, it is impossible to discern any principle upon which an appeal should not be available in the (perhaps more serious) cases where the Lord Advocate raises a petition. In Wylie and the succeeding cases, the need to make good the lack of an appeal against findings of contempt by a single Judge was plainly regarded as a sufficient reason for the court to exercise its nobile officium. We are equally satisfied that, in cases where the Lord Advocate proceeds by petition for contempt of court, the respondent is entitled to appeal by presenting a petition to the nobile officium. The petition by Express is accordingly competent.
The original hearing was before a court comprising three Judges. This appears to be in accordance with what has come to be regarded as normal practice in such cases. Lord Mackay submitted that there was no rule, either of the common law or of statute, which laid down that the quorum for such a hearing required to be three Judges. He submitted that in the absence of any such rule it was open to the High Court itself, as the supreme court, to determine the size of the bench for the hearing of any particular petition.
Both counsel for Express and the Solicitor General and his officials provided the materials on the history of this matter through which we were guided. The first statute to deal with the quorum of the High Court was the Courts Act 1672 which narrated that up until that time assessors had been appointed to the Lord Justice General, but those offices were to be suppressed and five of the Lords of Session were to be joined with the Lord Justice General and Lord Justice Clerk. The Lord Justice General was to preside, if present, and in his absence the Lord Justice Clerk was to preside. If neither was present, those Judges present were to elect one of their number to preside, but four of the whole number should always be the quorum of the court, except at circuit courts. The quorum was reduced to three during the vacation of the Court of Session by the Quorum of Justice Court Act 1681. Section 7 of the Justiciary and Circuit Courts Act 1783 (c. 45) enacted that the quorum of three was to apply at all times, during term and in vacation. Section 1 of the Justiciary Court (Scotland) Act 1868 provided that a single judge could preside alone at a trial and that, when he did so, he would constitute a quorum of the High Court. (That provision is the origin of Section 1(4) of the 1995 Act.) Had the matter rested on the provisions which we have cited, the position would therefore have been that the quorum for a trial was a single Judge, while the quorum for other sittings was three. The Statute Law Revision Act 1871 (c. 116) repealed Section 7 of the 1783 Act, however, and so removed that provision which had determined that the quorum should be three. This was followed by the Statute Law Revision (Scotland) Act 1906 (c. 38) which repealed the parts of the Courts Act 1672 and the Quorum of Justice Court Act 1681 which had earlier prescribed a quorum of three. The result therefore is that there are now no statutory provisions - other than those dealing with appeals under the 1995 Act - which lay down that any particular business should be heard by a specified quorum of the High Court.
In those circumstances we accept that, in cases not covered by the 1995 Act provisions, it must be for the court to determine the appropriate quorum for the hearing of classes of business. In that connexion we note that in H.M. Advocate v. Lowson Lord Ardwall decided that, sitting alone, he could not deal with an application to the nobile officium of the High Court in relation to bail. He was following a previous decision of Lord Justice Clerk Macdonald. We interpret that case as indicating that the court had determined that such applications should be made to a court comprising three Judges. Indeed, it is established practice for petitions to the nobile officium to be presented to a court of three Judges. On the other hand in H. M. Advocate v. Hasson 1971 J.C. 29 a petition for a commission and diligence to recover documents was heard by Lord Cameron sitting alone. There are signs also that it has not been the universal practice to place petitions and complaints for contempt of court before a court of three Judges. We were referred to H. M. Advocate v. Bell 1936 J.C. 89 which involved such a petition following an alleged contempt by a witness who had failed to answer his citation to appear as a witness for the Crown at a High Court trial. The Lord Justice Clerk (Aitchison) had presided at the trial and he later sat alone to deal with the petition and complaint. It does not appear that the Lord Justice Clerk, with his vast experience of our criminal law, or any of the distinguished counsel who appeared in the proceedings, thought that there was any difficulty in the matter being handled by a single Judge. In our view therefore it will be open to the High Court in the circumstances of any given case to decide whether a petition and complaint should be heard by a single Judge or by a larger bench.
It follows that, while the Lord Advocate's petition could have been heard by a single Judge, if the court had so directed, it was competent, of course, for it to be heard by three Judges. It follows equally from what we have said that it was for the court to determine the appropriate quorum for considering this application to the nobile officium. Since the court was being asked to entertain an appeal against the decision of the court of three Judges, as we explained, we decided that it was appropriate for that matter to be heard by a court made up of five Judges.
Having disposed of the procedural points in the case, we pass to the substance of the appeal.
We have explained that the contempt of court by Express arose under the strict liability rule which was introduced by Sections 1 and 2 of the Contempt of Court Act. In terms of that rule conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular proceedings regardless of intent to do so, but the rule applies to a publication only if the proceedings in question are "active" at the time of publication. The circumstances in which proceedings are "active" are set out in Schedule 1 and it is common ground that proceedings are active from the time when an accused is arrested until they are "concluded". Paragraph 5 of the Schedule provides that criminal proceedings are concluded
"(a) by acquittal or, as the case may be, by sentence;
(b) by any other verdict, finding, order or decision which puts an end to the proceedings;
(c) by discontinuance or by operation of law."
Paragraph 7 provides that proceedings are discontinued within the meaning of paragraph 5(c) if they are expressly abandoned by the prosecutor or are deserted simpliciter.
At separate hearings in December 1997 two men appeared on petition in the Sheriff Court. Both were charged with theft by housebreaking at particular premises. Eventually one of the men pled guilty, but the other was indicted for trial in the Sheriff Court. The trial diet was adjourned until 20 April 1998 when the diet was deserted pro loco et tempore. The accused was liberated on bail, subject to certain conditions, but it was, of course, open to the Crown to raise a fresh indictment. The Solicitor General explained why the diet had been deserted. He informed us that a witness for the Crown had been unable to attend court to give evidence at the trial and that the Crown's application to have the evidence heard on commission had been opposed by the defence and had been refused by the Sheriff. The Crown had therefore deserted the diet pro loco et tempore but had subsequently served a fresh indictment on the accused. That indictment had been due to call for trial in November 1998, but the Crown had not called the diet since they had been unable to secure the attendance of the witness in question. Eventually, when a year had elapsed from the first appearance of the accused on petition, the proceedings had become time-barred in terms of Section 65(1) of the 1995 Act. We should add that the article in question, which was published on the front page of the Scottish Daily Express on 24 April, four days after the diet was deserted, dealt with the evidence in the case.
It was, of course, accepted by Lord Mackay that when a diet is deserted pro loco et tempore the proceedings are not "concluded" in terms of paragraph 5 of Schedule 1 to the Contempt of Court Act. In that situation therefore the proceedings remain "active" for the purposes of Section 2 and the strict liability rule continues to apply to the proceedings. More particularly, he accepted that the proceedings in the actual case to which we have referred had remained active until they had eventually become time-barred, even though the diet had been deserted pro loco et tempore on 20 April 1998. Although Express now accept this, they formerly acted upon the opposite - and wholly mistaken - view that the proceedings were no longer active after the diet had been deserted on 20 April.
In the opinion which he delivered giving the views of the court when imposing sentence, the Lord Justice Clerk referred to certain averments in Article 10 of the Lord Advocate's petition relating to a telephone conversation on 21 April between the procurator fiscal and the third respondent, a reporter with the Scottish Daily Express. On this basis he explained the circumstances of the contempt and we cannot do better than to quote what he said:
"In the course of that call the Procurator Fiscal confirmed to the third respondent that the case had been deserted. The third respondent asked whether the desertion was pro loco et tempore or simpliciter. The Procurator Fiscal advised her that the case had been deserted pro loco et tempore and that this reserved the Crown's right to reindict the accused in due course. The third respondent asked when the case would be reindicted and it was indicated to her that no date be given at that stage. The Procurator Fiscal specifically indicated to her that the accused had already appeared on petition, that he had been indicted to a trial diet on 20 April, albeit that the diet had been deserted pro loco et tempore. The Procurator Fiscal indicated to the third respondent that in his view the proceedings were active in terms of the Contempt of Court Act 1981. The third respondent stated that in her view proceedings were not active since the matter had been deserted pro loco et tempore. The Procurator Fiscal suggested to her that she might wish to consult the newspaper's legal advisers before publishing any article. Lord Mackay informed us that none of the facts set out in the petition were in dispute and in particular he did not dispute the passage from Article 10 to which we have referred. He went on to inform us that the third respondent had reported this story to her supervisors and had given them a full report of her conversation with the Procurator Fiscal. From that therefore there is no doubt that the information contained in Article 10 of the petition was communicated to them. Lord Mackay informed us that it was obvious to [the editor] that legal advice would be required. He went on to say that a firm of solicitors had acted for many years in this capacity. In particular four partners of that firm performed that service. In this case two partners were involved and they gave advice to the newspaper that the fact that the proceedings had been deserted pro loco et tempore had brought the proceedings to an end. Lord Mackay confirmed that they had been made fully aware of the view which the Procurator Fiscal expressed to the third respondent. However, this was not a position which was accepted by them. Lord Mackay accepted that this advice given by the solicitors was wrong and he accepted that as soon as the position was made clear to him, it was accepted that the advice given by those solicitors was completely indefensible."
Before this court Lord Mackay did not really seek to expand significantly on the narrative of fact contained in the Lord Justice Clerk's opinion. He explained that the journalist had worked on the story on 21 April, the day after the trial diet had been deserted. She had had a discussion with the procurator fiscal depute who had told her that the diet had been deserted pro loco et tempore and that the Crown retained the right to re-indict the case. The story had been discussed at an editorial conference at 12.30 p.m. on 23 April when the procurator fiscal depute's view had been mentioned. It was decided that legal advice needed to be obtained. The publishers' legal advisers - who were not the solicitors representing Express in this petition - were contacted and were told of the discussion with the procurator fiscal depute. The advice was that proceedings were no longer active. That advice was confirmed later that day when another member of the firm attended at the Express offices and read the text of the article. The editor, the journalist and the Express had all been misled into thinking that the proceedings were not active. Had they been advised that the proceedings were active, the article would not have been published. Lord Mackay did not attempt to explain in any way how solicitors, experienced in this area of the law, had come to tender the advice which they did.
Lord Mackay submitted that in the circumstances the fine imposed by the court had been excessive. He made no submission about the ability of Express to pay a fine of the level imposed. He emphasised, rather, that Express had taken legal advice and had published the article only because they had been advised that proceedings were not active. When the petition had been raised and they had been correctly advised that the proceedings had been active at the relevant time, the Express had immediately accepted that what they had done had been in contempt of court and had apologised unreservedly to the court. Lord Mackay had instructions to tender a similar apology on behalf of the solicitors concerned. While it was not particularly useful to look at the amounts of fines imposed in other cases, he considered that the court might wish to note the recent case of H.M. Advocate v. Scotsman Publications Ltd. 1998 G.W.D. 21-1060, where, in determining the appropriate penalty, the court had taken account of the fact that the publishers had taken legal advice before publishing the article. In that case a fine of £10,000 had been imposed.
The only question for us is whether the fine can properly be regarded as excessive, given all the circumstances of the case. In considering that matter we note that Express gave considerable prominence to the article. We note also that, even though Express took legal advice, it is well established that, where Sections 1 and 2 of the Contempt of Court Act apply, the duty of publishers is actually to avoid publishing articles which create a substantial risk of serious prejudice to the course of justice. Express have acknowledged that they failed to discharge that duty and so did indeed create that risk of serious prejudice. Having regard in particular to the level of fines imposed in some recent cases, we accept that the fine imposed in this case may be considered to be high. On the other hand it appears to us that, in some at least of those recent cases, the fines were lower than fines imposed in comparable cases in the past. Be that as it may, we have reached the view that the fine selected by the Judges in this case was within the range of the fines which they were entitled to impose in order to mark their serious view of the publication of the article which, as Express admitted, created a substantial risk that the course of justice would be seriously impeded or prejudiced in a case which merited proceedings on indictment. For these reasons the appeal is refused.
Lord Mackay of Drumadoon, Q.C.
Morton Fraser & Milligan