Scottish High Court of Justiciary Decisons

BRIAN ALEXANDER v. PROCURATOR FISCAL, DUNFERLINE [1999] ScotHC 35 (23rd February, 1999)

This Bill of Suspension is taken by the complainer, Brian Alexander, in respect of a finding of contempt of Court made by the district court of North Ayrshire. The Court fined him £100 in respect of the contempt.

The background is complicated but we need not go into it. The position eventually was that the Court considered a previous failure to appear on the part of the now complainer. The matter was subsequently raised as one involving an issue of contempt. At that stage the complainer's solicitor advised the Court that medical evidence could be made available if the Court wished. The Court found the complainer guilty of contempt but it appears that the contempt lay not so much in the original failure to appear but in the failure to have medical evidence available to vouch medical reasons as the explanation for that non-appearance. The position is somewhat complicated by the fact that it now appears that the medical evidence would not in fact have established that the appellant was in hospital, as was then the position, but that we do not think is now enough to resolve the matter. The finding of contempt apparently proceeds upon the failure to vouch the position put forward on behalf of the complainer. We can see no basis upon which such a failure to vouch a proposition can be regarded as contempt. On behalf of the complainer Miss Scott drew our attention to Anderson v Douglas 1997 S.C.C.R. 632 and in particular what is said by the Court at page 65. In the final paragraph the Court emphasised to magistrates that they should not make findings of contempt unless it is quite clear that there has been a wilful challenge or a wilful failure in defiance of the order of the Court and that this must be properly established before they can make the finding of contempt.

We can see no basis in the present case upon which those tests could be thought to have been met. The Bill will be passed and the conviction quashed.