Scottish High Court of Justiciary Decisons

IN PETITION TO THE NOBILE OFFICIUM BY ALAN SCOTT McNEILAGE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 92 (23rd April, 1999)

The petitioner, who was a witness in a jury trial in the Sheriff Court at Glasgow on 25 March 1999 was found guilty of contempt of court by reason of prevarication and was sentenced to three months imprisonment. In this petition he challenges the sheriff's finding of contempt of court on the ground that she acted oppressively towards him. He maintains that in any event the sentence imposed by her was excessive in the circumstances.

The trial was concerned with a charge of assault to severe injury and permanent disfigurement, to which the complainer spoke in her evidence. There was a statement of uncontroversial evidence as to the injuries sustained by her. The petitioner was the third Crown witness to give evidence. He stated that the complainer had arrived at his house in the early hours of the morning. In her report the sheriff provides us with an account of the content of his evidence and the way in which he gave it. She formed the view that he patently tried to avoid answering the questions put to him by the procurator fiscal depute. He did not appear confused at any stage. He sought to play down the injuries to the complainer and took the opportunity to make gratuitous adverse comments about her. He also volunteered information about the accused's non-violent character.

Mr. Shead, who appeared for the petitioner drew our attention to the fact that, according to the minutes, the petitioner was found guilty of contempt for prevarication, firstly, in that he stated that he had told the police that the complainer had no injuries other than a black eye, she had cuts, and he could not remember if she had scratches. He then said that she had scratches. Secondly, he stated that he had seen her taking heroin, but later stated that he had not done so and that his evidence was "just hearsay". Mr. Shead submitted that the court was bound to base its decision on the minutes and what was there specified. As regards the first of these matters, he pointed out that there was unchallenged medical evidence and photographs of the complainer's injuries. These must have been the subject of agreement before the commencement of the trial. Accordingly, anything that the petitioner said was a relatively minor matter which had no bearing on the outcome of the trial. As regards the second matter it too was of no great significance. The petitioner had given evidence to the effect that she had been taking heroin and that evidence remained part of the evidence before the jury. In these circumstances it was excessive for the sheriff to find him guilty of contempt of court. He also pointed out that the petitioner's explanation as to his lack of a clear recollection was that he had been drunk. He was an alcoholic. The other matters mentioned by the sheriff in her report were irrelevant. They were not set out in the minutes and could not in any event constitute prevarication. There was no suggestion that the information which he had volunteered was used by him as a means of avoiding the answering of a question. The fact that the petitioner made gratuitous comments about the petitioner's non-violent character could not be prevarication.

In the course of discussion, reference was made to a passage in the opinion of Lord Young in McLeod v Speirs (1884) 5 Couper 387 at page 405. In that passage he referred to the meaning of the expression prevarication, saying: "It is a loose and indefinite term, which may mean many different things short of perjury; the general idea which it conveys is manifest unwillingness candidly to tell the whole truth, fencing with questions in such manner as to show reluctance to disclose the truth, and a disposition to conceal or withhold it". It is perfectly plain that if one begins with what is specified in the minute it is necessary, for a proper understanding of what is recorded that the Sheriff considered to constitute prevarication, to have her full explanation. We have a very adequate report from her in that respect. What is prevarication depends very much on a collection of impressions derived from the content of a witness' evidence and also the manner and attitude displayed by that witness in the witness box. It is plain therefore that the mere unvarnished passage in the minute requires to be considered in terms in the light of her report. We would, however, go further and to say that it would be a mistake to look solely at what is specified in the minute without taking into account the full context of what the Sheriff observed. Her report conveys to us a very clear impression of witness who was behaving in the way described by Lord Young in the passage which we have already quoted. We are entirely satisfied that the Sheriff was justified in finding the petitioner in contempt of court by reason of prevarication.

So far as the matter of sentence is concerned, Mr Shead told us that the petitioner had not been in trouble for some time. He was 45 years of age and on income support. He had certain health problems and had suffered a recent epileptic fit. He had been receiving some medication in prison and this had now been discontinued. He already had served four weeks. He was concerned about the loss of the tenancy of a local authority house in Rutherglen. When we consider the nature of the conduct described by the Sheriff in her report against the background of the importance that witnesses who are cited to give evidence at a criminal trial should be candid in telling the whole truth and not avoid the questions which are put to them, we are entirely satisfied that the sentence imposed by the Sheriff was not an excessive one. There are no grounds for us to interfere in the exercise of the nobile officium. The petition is accordingly refused.