APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: MISC306/03
OPINION OF THE COURT
delivered by LORD PENROSE
to the nobile officium
JOHN MAYER, Advocate
HER MAJESTY'S ADVOCATE
Appellant: Findlay, Q.C.; Stirling & Mair, Paisley
Respondent:Murphy, Q.C., A.D.; Crown Agent
16 November 2004 The petitioner is a member of the Faculty of Advocates. On 29 August 2003 at the High Court of Justiciary at Edinburgh he was found to be in contempt of court by the Rt. Hon. Lord Hardie and fined £500. The circumstances giving rise to that finding and the reasons for it are set out in the opinion issued by Lord Hardie in H.M. Advocate v Tarbett 2003 SLT 1288.  The finding of contempt related to one aspect only of a more complex sequence of events. These included contacts between the petitioner and representatives of the Lord Advocate and others that were controversial in themselves. It was recognised that proof would have been required to resolve the issues of fact that arose, and to enable the conduct of the petitioner to be characterised properly in the light of an advocate's duties to the court. Lord Hardie referred the petitioner's conduct to the Dean of Faculty for resolution in terms of the Faculty's disciplinary procedures. In the circumstances it is necessary to refer to the wider background only to the extent necessary to describe the issue that arises in respect of the finding of contempt.  The petitioner was instructed to appear for one of the individuals indicted in the case of Tarbett. When that case called for trial on 1 July 2003 the petitioner was appearing at a first diet in another criminal case in Edinburgh Sheriff Court. Lord Hardie understood that the petitioner had also been instructed to appear on the same day at a different trial due to call before Lord Menzies, also at the High Court at Edinburgh, in a case H.M. Advocate v Casey. Lord Hardie required the immediate attendance of the petitioner before his court in the case of Tarbett.  The petitioner appeared before Lord Hardie at 11.20 a.m. By that stage Lord Hardie had learnt that the trial of Tarbett would not be able to proceed for reasons wholly unrelated to the petitioner, and that it was believed by some, including the petitioner, that the case would not be called. Lord Hardie was allocated another trial. He continued Tarbett to the close of business to enable the petitioner to appear before Lord Menzies in the case of Casey before taking up the issues that arose from the petitioner's earlier failure to appear.  At the continued hearing the petitioner intimated that he would be free to appear in the case of Tarbett which it was intended to call on completion of Lord Hardie's alternative business. He explained that when the case of Casey had called before Lord Menzies he had withdrawn from acting because he was not prepared to support in argument a devolution minute that the accused had prepared himself. Lord Hardie did not take up this explanation for further discussion, but at that stage clearly considered it to be unusual. He was told later, and Mr Findlay confirmed in discussion before this court, that Casey was a 'barrack-room lawyer' who was quite capable, with the support of other experienced convicted prisoners, of preparing such a document. But what is material is that at the time Lord Hardie did not find the explanation wholly unquestionable.  More generally, Lord Hardie makes it clear in his opinion that he did not consider that the petitioner was frank in his explanations. On the contrary he says: "Had he been a witness, I would not have believed his explanations". But the explanations tendered made it clear to Lord Hardie that the petitioner had three concurrent commitments, one of which, the instant case, he believed would not require an appearance.  In relation to the case of Casey Lord Hardie states:
" In relation to Casey, Mr Mayer confirmed that he was aware that it was coming into court on 1 July but thereafter was evasive in his responses as to what he thought was to happen with the case. He referred to the number of previous adjournments in that case and he refused to answer whether or not he expected that case to go to trial on 1 July 'because I didn't know'. When asked by me whether he would have appeared if that case had gone to trial, he replied:
'Yes, I would have been bound to. My instructions in that case predated my instructions in this case.'
If that had occurred, he would have passed the papers in the present case on to another counsel. In that regard he said:
'I thought I would have had the opportunity to pass the papers. I told the agents in this case about the situation, pass the papers and brief another counsel.' He also advised me that the trial in Casey was due to begin 'but not before 12 noon'.
That statement was inaccurate. Jurors and witnesses were in attendance and the trial would have started at 11.a.m. but for difficulties that had arisen."
Those difficulties were that an essential witness had failed to appear and that a labelled production was not available, frustrating the Crown's intention to begin the trial at 11.a.m. It was re-scheduled for 2.p.m. Matters relating to the case of Casey were next discussed on 29 July. Lord Hardie states:
" On 29 July ... the advocate depute provided certain additional information about the citation and attendance of witnesses and jurors in this case and in H.M. Advocate v Casey. Mr Mayer's instructing solicitor in H.M. Advocate v Casey had been told that the trial would start at 10.a.m. but jurors were not cited for that time and it could not start before 11.a.m. The problems already mentioned were discovered and prospective jurors were sent away until 2p.m. Mr Mayer appeared at 11.55a.m. in connection with Casey and said that he was of the view that Casey was not due to start until midday. The Crown was anxious to start the trial at 2p.m. but shortly before 2p.m. Mr Mayer advised the Crown that he had been presented with a Devolution Minute, which he was not prepared to argue. In response, despite being advised by me that it might be prudent to say nothing at this stage, Mr Mayer stated that he had known about the Devolution Minute for one or two days. He also knew that he would not be conducting the trial in Casey. When I pointed out that appeared to contradict his earlier statements to me, he denied that was so, ...  As at 29 July I considered that Mr Mayer may be guilty of contempt of court ... by deliberately misleading the court by providing false information to me. Accordingly I fixed a hearing for 1 August to enable Mr Mayer to obtain legal representation and thereafter answer the allegations."
" In relation to the Casey trial, senior counsel understood from Mr Mayer that the original explanation given to the court was untrue and that the correct position was consistent with that adopted by Mr Mayer on 29 July. By the weekend prior to 30 June his instructing solicitor had advised Mr Mayer of the preparation by the accused of the Devolution Minute and the accused's desire to proceed with it. Mr Mayer was aware of the terms of the Minute and he agreed with the instructing solicitor that the Minute was entirely without merit. Accordingly they would no longer act for the accused if he insisted upon the Minute being lodged. On 30 June the instructing solicitor consulted with the client in the absence of Mr Mayer and by that evening Mr Mayer, the instructing solicitor and Casey were aware that Mr Mayer and the instructing solicitor would no longer act in that trial. The explanation tendered for the original explanation given to me by Mr Mayer was that he had panicked and that I should make allowance for his reaction. It was submitted that his reaction was indicative of recklessness rather than dishonesty. When I asked senior counsel about the reference to Casey not starting before 12 noon, he sought instructions. Thereafter he advised me Mr Mayer maintained that different people had given him different estimates for the possible start of Casey, the latest and most convenient for Mr Mayer being 12 noon. ... Mr Mayer elected to rely upon the time which suited him best. Senior counsel submitted that was another indication of a reckless approach rather than a dishonest one. In summary senior counsel's position in relation to the statements to the Court on 1, 2 and 29 July concerning Casey was that some of those statements were untrue but they should be interpreted by me as reckless statements rather than evidence of Mr Mayer's dishonesty.
... I was also advised that the original statements about H.M.A v Casey were the result of Mr Mayer speaking without taking time to clarify his thoughts. Although these statements were erroneous, I should not conclude that Mr Mayer had been dishonest because the element of intent was absent. ..."
" The remaining issue for my consideration is the question of contempt of court in relation to the false statements in relation to the trial in H.M.A v Casey. There was the obvious contradiction in statements made by Mr Mayer about his intentions in relation to that trial and there was the statement that the trial would not begin before 12 noon. It was accepted that the original statements, which gave the impression that Mr Mayer intended to conduct that trial, were false. For reasons already explained, he intended to withdraw from acting and he did so. It was submitted on his behalf that he had provided the court with false information because he had panicked and I should accept that this was indicative of recklessness rather than dishonesty. It was also accepted that the statement about the commencement time of the trial was false. The explanation tendered for this false statement was that this was simply another example of recklessness on the part of Mr Mayer. He had been given different times by different unspecified people and had chosen to operate on the basis of the most convenient time for him, namely 12 noon, whereas the Crown intended the case to start at 10.am and the jury had been cited for 11a.m. Senior counsel suggested that Mr Mayer's conduct in this regard was indicative of a cavalier approach rather than dishonesty."
"[In] our opinion an intention to challenge or affront the authority of the court or to defy its orders is a necessary element without which it cannot hold that a contempt of court has been committed. ...
A finding that the conduct was wilful may, of course, be based on inference. If it is necessary to resort to inference, the question to be considered is not whether the conduct was reckless or amounted to gross neglect but whether, in all the circumstances, it can be held to have been a wilful challenge, or a wilful failure, in defiance of the authority of the court."
"It has always been recognised in Scotland that when such a situation develops at a trial the judge should investigate the matter on the spot and if satisfied that a contempt has been committed he may award at once such punishment as he thinks fit. He is not, of course, bound to dispose of the matter right away but he is clearly entitled to do so and there is much to be said for his doing it at once. He knows exactly how the matter has arisen and is in the best position to judge how grave or flagrant the contempt is. So much depends on the demeanour and bearing of the person alleged to be in contempt. The presiding judge, before whom it has happened, accordingly is in the best position to determine the matter fairly and accurately. Any other judge or Court can only recapture the atmosphere from a perusal of the cold printed record of what was said and therefore can only be dealing with the matter at second-hand."
Both individuals were sentenced to three years' imprisonment by the trial judge and that was sustained in the disposal of the petition. In H.M Advocate v Airs 1975 JC 64 the procedure took a different course. A petition and complaint was brought at the instance of the Lord Advocate against a journalist who had refused to disclose the identity of a contact in the course of his evidence at a High Court trial. It will be necessary to return to other aspects of that case. But, in relation to procedure, the Lord Justice General (Lord Emslie), delivering the opinion of the court, commented on situations in which proceedings might be taken by a formal complaint in the Sheriff Court, or by the use of ordinary criminal procedures where the facts constituting or alleged to constitute contempt also constituted a crime known to the law of Scotland, or by the use of the "well established and competent process" of petition and complaint, and said at page 69:
"Where, ... , the Lord Advocate in appropriate cases does not choose to prosecute the Court may deal with the matter as a contempt at its own hand.."
The general position is discussed by Gordon Criminal Law 3rd Edition paragraphs 50.01 and following in terms compatible with these cases, while making reference to contemporary thinking as influenced by the Convention. Mr Findlay's submissions, at their most general, challenge the authority of these cases, and in particular the judicial validation of the competency of the procedures identified in them, in the light of European jurisprudence, following the adoption of the European Convention on Human Rights. In summary he argued that the finding of contempt in respect of the events relating to Casey was made without sufficient inquiry; that any inquiry that was appropriate should have been carried out not by Lord Hardie but on remit to a different judge; that in terms of Article 6 of the European Convention on Human Rights the conduct held to be contempt was criminal and should have been dealt with accordingly; and that the scope for a dual approach in Scots law, distinguishing conduct amounting to contempt that was otherwise within the scope of the general criminal law from conduct of an administrative of disciplinary character, was limited given the exposure to significant custodial penalties in all cases.  Before expanding on these propositions, Mr Findlay commented on some matters of fact, and contended that as a matter of domestic law there should have been inquiry before a different judge. In paragraph  of his opinion, Lord Hardie said:
"In the course of his explanation to me on 1 and 2 July for his failure to appear on time, Mr Mayer's demeanour was not suggestive of someone doing his best to be frank. Had he been a witness, I would not have believed his explanations. My reservations were ultimately justified because Mr Findlay later explained that there were certain inaccuracies in the explanations tendered to me by Mr Mayer."
Mr Findlay explained that at the material time, strictly speaking, the petitioner did not have a commitment to represent Casey. Before 1 July it was clear that he would not appear to represent Casey. It had been decided that he would not act because of Casey's insistence on his devolution minute. In paragraph  Lord Hardie quoted exactly comments made by the petitioner about having instructions in relation to the Casey prosecution which were spoken, but which did not reflect the accurate position. He knew that he did not have instructions to defend Casey, and that he would not be acting in the case. Mr Findlay confirmed that the petitioner made the representation referred to in paragraph  of Lord Hardie's opinion, but explained that it was not unusual for information to circulate about the starting time of cases. He accepted that there was an obligation to check such forecasts with authoritative sources. The petitioner was open to criticism for taking advantage of the confusion, and in terms of organising his business his position was extremely weak, but properly viewed he had been reckless rather than dishonest. His position was that he had information identifying a mid-day start time, and on that view he had not attended the sheriff court "in preference to the High Court" (paragraph  of the opinion) but in the belief that he had time to fulfil both commitments.  In general, however, Mr Findlay accepted as accurate Lord Hardie's narrative of the developing picture. Against that background, he submitted that, properly understood, Lord Hardie's comments in paragraph  amounted to a finding of a prima facie case of contempt. There were two aspects to this, first the failure to appear, which might be in the category of an administrative or disciplinary failure, and the provision of false information, which, he said, was a more serious matter. It would have been serious in the case of an ordinary citizen. For a member of the Faculty of Advocates to lie to a judge was the most serious misconduct one might envisage. The whole relationship between bench and bar was based on mutual trust and mutual respect, and the bench's reliance on the accuracy of information tendered by the bar was based on that trust. Paragraph  amounted to a prima facie finding that the petitioner had breached the obligations of trust owed to the judge.  At that point in time, in view of the seriousness of the allegations, the judge ought to have remitted the issue to an independent judge. It was clear already that there were contentious issues of fact in relation to the information available to the petitioner. It was necessary to identify the sources of that information and to investigate what had been said to him. An inquiry might have concluded that the information provided to the judge was wrong, but not that the statements made had been false. That issue was a proper issue for inquiry.  Mr Findlay argued that there was a need for inquiry in relation to the issue of instructions to appear in the Casey trial. It was said on the petitioner's behalf that he had panicked. Lord Hardie did not accept that view of the position (paragraph  of his opinion), but that was an issue of fact on which the petitioner was entitled to a fair and independent inquiry. Such an inquiry might have concluded that the statement was false. But it might have been held to be indicative of utter stupidity or recklessness. The petitioner had gone to the sheriff court, an act that made little sense in itself, and had been summoned to appear before Lord Hardie who was known to impose strict disciplinary requirements. He returned to the High Court to discover that a case he did not expect to call had called. The contention was that panic led him to say the first thing that came into his mind. His insistence on speaking, and aggravating the position, even when warned by Lord Hardie that it was in his best interests to say nothing, was a strong indicator of panic or stupidity. His determination to explain himself at any cost pointed to that view. His conduct generally could be said to have been reckless rather than dishonest and that was a proper issue for inquiry.  In relation to the mid-day start time for the Casey trial, Mr Findlay explained that it had not been appreciated how central this issue was to Lord Hardie's thinking, and that the finding of contempt came as something of a shock. He accepted that there had been no specification of the source or sources of information that the trial was not to start until 12 noon. He had had a brief discussion with petitioner about the matter, but the point "came and went", and was not resolved. The emphasis in his approach had been on the issues arising directly out of the Tarbett case. Lord Hardie was of a different view. But that gave emphasis to the need for proper procedure with full specification of the allegations of contempt. In advance of the hearing there was nothing to suggest that the Casey issues constituted a major problem. Mr Findlay noted that Lord Hardie had referred to the need for proof in the other aspect of the case (paragraphs 38 and 39 of his opinion). There should have been proof in relation to issue that resulted in a finding of contempt. He observed that in Airs Lord Keith, who was the trial judge, had identified procedure before a different judge as the appropriate course in the case of the alleged contempt by a journalist.  Turning to the European jurisprudence, Mr Findlay submitted that on the established authorities the proceedings in the petitioner's case fell properly to be characterised as criminal proceedings, and that the petitioner was therefore entitled to the benefit of the criminal provisions of Article 6 protecting accused persons. He referred to and discussed passages from the opinions in Kyprianou v Cyprus (Application No. 73797/01, 27 January 2004, unreported); Engel v Netherlands 1976 1 EHRR 647; Lutz v Germany 1987 10 EHRR 182; Weber v Switzerland 1990 12 EHRR 508; Demicol v Malta 1991 14 EHRR 47; Ravnsborg v Sweden 1994 18 EHRR 38; and Putz v Austria 22 February 1996 (Reports of Judgements and Decisions 1996-I p. 312) to show the consistent approach of the court to the classification of proceedings for the purposes of the Charter. Domestic classification of the offence as criminal was decisive. In other respects domestic classification was not determinative of the issue. The nature of the offence had to be considered. If that did not determine the issue, one had finally to consider the nature and degree of the penalty that the person risked incurring, having regard to the object and purpose of Article 6 and to the ordinary meaning of the terms of that Article and to the laws of the Contracting States.  Mr Findlay accepted that contempt was not classified as criminal in Scots law. In H.M Advocate v Airs the Lord Justice General at page 69, said of contempt:
"[W]here it occurs, it is peculiarly within the province of the Court itself, civil or criminal as the case may be, to punish it under its power which arises from the inherent and necessary jurisdiction to take effective action to vindicate its authority and preserve the due and impartial administration of justice [see H.M.A v Cordiner 1973 S.L.T. 125 at 126]. In some, but in no means all cases, the facts which constitute or may constitute contempt of court may also constitute a criminal offence and render the offender liable to prosecution, but, save as expressly authorised by section 33 (3) of the Summary Jurisdiction (Scotland) Act 1954, which permits a prosecutor in the Sheriff Court to proceed by "formal complaint" against a witness for certain defined acts which are deemed to be contempts, the charge will not be of contempt of court but will be of the commission of a crime known to the Law of Scotland under its appropriate nomen juris, for example perversion of the course of justice, assault, breach of the peace and the like."
"It is normal for the presiding judge to decide if conduct amounts to contempt. There may, however, be circumstances in which exceptionally it would be inappropriate for him or her to do so. In these circumstances the judge should remit the case to the High Court at Edinburgh on a specified diet, either detaining or releasing the person as may be appropriate. Likewise, once a finding of contempt has been made, it is for the judge to decide whether the circumstances warrant an exception to the normal rule that the judge who makes the finding of contempt ought personally to deal with the appropriate punishment for the contempt of court. If the judge considers that the case is of such an exceptional nature that he or she cannot properly deal with the issue of punishment, he or she should, after making the formal finding of contempt, remit the issue to the High Court at Edinburgh, on a specified diet, either detaining or releasing the offender as may be appropriate."
The memorandum further stated at paragraph 8:
"Although an act of contempt should be dealt with expeditiously, it is much more important that it be dealt with - and be seen to be dealt with - fairly and objectively."
 It is appropriate to set the issue before the court in context. The petitioner accepted instructions to act as counsel for one of the accused in the case of Tarbett. When, on 1 July 2003, that case first called for trial in the High Court, the petitioner was not in attendance. He did appear when the case was again called later that morning. Meantime, for reasons unrelated to the petitioner, arrangements had been made for Lord Hardie to preside at another trial. That other trial proceeded and was in due course disposed of. On 3 July Tarbett was again called for trial. Lord Hardie was the presiding judge. The petitioner appeared as counsel for his client. The trial was a lengthy one, the jury's verdict ultimately being returned on 29 July.
 The issue with which this court is concerned is the finding of contempt of court which Lord Hardie made in respect of the petitioner. That finding was that the petitioner had made certain statements to the court which, in respect of certain of them, were "a wilful attempt to mislead the court" and, in respect of another such statement, "deliberately misleading". None of these statements was germane to the issues which the prosecution of the petitioner's client and that client's co-accused had been brought to determine. They were concerned solely with the conduct of the petitioner personally and with his explanations for that conduct. It was unnecessary to resolve the issue of possible contempt during the dependence of the trial. A hearing on that issue took place on 1 August, when senior counsel appeared on behalf of the petitioner. Lord Hardie made his finding of contempt of court on 29 August. In our opinion, the first issue which arises in this context, as in any application to the nobile officium in a contempt case, is whether the procedures adopted at first instance met the high standards set by the Lord Justice General's Memorandum. There is no allegation in this case that Lord Hardie was in fact less than objective in his approach to the issues raised by the petitioner's conduct, or that he was in fact unfair in the course adopted. However, as the Memorandum makes plain, the proceedings must be seen to be fair and objective.  The initial cause of the court's concern about the petitioner's conduct was his failure to appear on the calling of Tarbett because he was at the sheriff court. The problems associated with the Casey trial were initially of secondary importance, and grew in significance only because of the explanations the petitioner insisted in pressing on Lord Hardie despite being advised to desist. In the event the finding of contempt was made solely in relation to the Casey matter. However, it is plain from his opinion that Lord Hardie had formed a view at an early stage that the petitioner's explanations of his failure to appear in the Tarbett case on time were false. As he says at paragraph , he considered that the petitioner was not frank, and that, had the petitioner been a witness, he would not have believed him. That view was formed and expressed without, in the event, the factual disputes surrounding Tarbett ever being resolved.  There were issues of fact to be determined at the hearing subsequently fixed for 1 August in relation to the Casey matter. The petitioner had stated that he had had information from an unspecified third party that the start-time for the trial before Lord Menzies was noon. His decision to act on such a basis may have been irresponsible and reckless. But that would not have constituted contempt of court, however reprehensible on other grounds, and it is, in our view, clear that an informed and objective observer would have expected the petitioner to be afforded the opportunity to lead such evidence as was available to him to establish that the relevant information had been communicated to him, and to do so without the burden of a prior adverse opinion of his credibility having been formed by the judge adjudicating on the question of contempt. A finding of contempt of court against a practising advocate had to have serious, and potentially grave, consequences. It was essential that the procedures adopted were manifestly fair and objective, and effective to dispel any suspicion that might reasonably be entertained by an independent and objective observer about their fairness. There was no urgency in disposing of this matter. There was not a trial in progress. In relation to Tarbett Lord Hardie recognised that there would have been a need to refer to the appeal court for directions as to the procedure to be followed. In our opinion the procedures adopted after the initial stages on 1 and 2 July were flawed, and it is within the power of the court, as a matter of domestic law, to grant the petitioner relief.  The finding of contempt made by Lord Hardie must be quashed. But that is not necessarily the end of the matter. The allegations arising from the petitioner's conduct were, and remain, matters of great concern. Setting aside Lord Hardie's finding requires the court to consider what further procedure, if any, is now appropriate. Given the reasons for the view that Lord Hardie's finding of contempt of court must be quashed, there can be no question of remitting the issue to Lord Hardie for determination of new. As we have already said, there was no urgency in the disposal of this matter, and the total time which has elapsed since the critical events is not such as to raise any concern of itself as to the prospects of securing a fair trial of the issues that arise. Although issues of professional discipline may also arise from the circumstances of this case, a proposition advanced by a judge of the High Court that a legal representative appearing before him has wilfully attempted to mislead his court is of such seriousness that this court cannot avoid its responsibility to determine that issue on its merits. The possibility of further procedure necessarily involves a consideration of the European jurisprudence and its application to the Scottish concept of contempt of court.  The classification of common law contempt in domestic law is authoritatively set out in Airs. It is an offence sui generis encompassing a wide variety of conduct, some of which is otherwise clearly criminal and some of which is not criminal. It comprises conduct which affects the administration of the court, or is otherwise disciplinary in character, and conduct which goes to the root of the issues being litigated before the court. It includes conduct that must be addressed immediately if it is to be dealt with effectively. And it includes conduct that may appropriately be dealt with by ordinary criminal procedures within their proper time limits. In the case of prevarication, one has conduct that is frequently obvious and indisputable, carried out in the face of the court, which can potentially undermine the effective exercise of the court's jurisdiction to dispose of the primary business before it. The witness's demeanour may contribute to the impression communicated to the judge, and instruct the view that the witness is prevaricating. Suitably advised by the trial judge of the risks associated with prevarication, the witness will often purge any contempt by giving evidence without further prevarication. Referring a question of contempt in such a case to the High Court in Edinburgh, perhaps from a sitting of the court on circuit, or from a remote sheriff court, may be problematical. The present case raises no such issues. The guidance obtained from the European jurisprudence has to be related to the particular circumstances of this case.  In Engel the motivation for the approach adopted by the court was explained at paragraph :
"If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The court therefore has jurisdiction, under Article 6 and even without reference to Articles 17 and 18, to satisfy itself that the disciplinary does not improperly encroach upon the criminal."
Against that background the court elaborated the three tests that have been applied consistently since. The first test (domestic classification) does not call for further discussion, since it is accepted that under the present law of Scotland contempt of court is not, as a general concept, classified as criminal conduct. The second test is "the very nature of the offence", a factor of greater importance than domestic classification. In the present case one is concerned with an offence that falls squarely into the disciplinary category on this test. Mr Findlay's contention that the petitioner could have been prosecuted at common law for an offence of giving false information to the trial judge in the course of a procedural discussion appears to us to be without substance.  The third test was expressed in these terms:
"However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution, cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so."
Until restricted by section 15 of the Contempt of Court Act 1981 to two years' imprisonment, the court had its full common law sentencing powers in relation to contempt. Sentences of three years' custody were not uncommon where the contempt interfered in a substantial way with the effective exercise of the court's jurisdiction. There is a considerable attraction in the advocate depute's argument that each case must be dealt with in its own terms. Without specification of the particular facts alleged to constitute contempt in a specific case the court may be unable to classify the allegation at all in terms of the second test. But it is in relation to the third test that the argument falls to be tested critically. The argument is that of their nature some forms of conduct constituting contempt of court do not expose the alleged contemnor to risk of deprivation of liberty. Mr Findlay's counter argument was that imprisonment is available without differentiation among all classes of contempt and that is sufficient in itself to require contempt proceedings to be treated as criminal for Convention purposes. At the level of generality adopted by Mr Findlay, the argument would directly challenge Airs, and could not be resolved by this court.  Unless one could state with confidence that contempt of court in the disciplinary sphere could not result in a custodial sentence, or at least in a sentence that could not be appreciably detrimental, the advocate depute's argument would present considerable difficulties. The procedural requirements of Article 6 depend on a priori classification of the alleged offence. If a case is criminal Article 6.3 prescribes the minimum rights of the accused person. A detailed charge, adequate time and facilities to prepare a defence, and the right to examine or have examined the witnesses against him are matters that have to be provided before the facts on which any penalty will depend are investigated.  The test is the penalty liable to be imposed: Engel, above; Lutz at paragraph 55; Weber at paragraph 34; Demicoli at paragraph 34; Ravnsborg at paragraph 35 of the court's opinion (compare paragraphs 61 and 62 of the Commission's opinion); Putz at paragraphs 34 to 37. The procedures envisaged in the Lord Justice General's memorandum envisage a remit to the High Court. Such a remit would require to specify the conduct considered by the trial judge to require investigation and it would contain that judge's allegation that the conduct complained of constituted or might constitute contempt of court. At that stage it would appear to be impossible to predict the outcome and in particular the sentence to which the alleged contemnor might be exposed beyond acknowledging that the penalty could not exceed two years' imprisonment or detention. In Demicoli the Commission observed that:
"The fact that the penalty actually imposed was not very severe does not .. deprive the charge of its criminal character" (para. 36)
that is, the character impressed on the charge by the penalties to which the person was exposed.
 With the benefit of the guidance in these authorities, the first issue is whether, in prescribing a course of procedure to be followed for the resolution of the question of contempt, the present case necessarily challenges the decision in Airs. It is important to bear in mind that the observations made in Airs were made in the context of proceedings, brought in the form of a petition and complaint at the instance of the Lord Advocate, alleging that a witness at a trial in the High Court had, by refusing to answer certain questions properly directed to him, been in contempt of that court. The questions so directed were germane to the issues of guilt or innocence that arose for determination in the trial. In the petition proceedings the respondent (the witness at the trial) took a plea to the competency of these proceedings on the basis that what was alleged against him was criminal and that the petition proceedings were in substance an attempted prosecution of him by an incompetent mode. The court rejected that contention. It was in that context that the court observed that contempt of court was an offence sui generis and observed:
"and, where it occurs, it is peculiarly within the province of the Court itself, civil or criminal as the case may be, to punish it under its power which arises from the inherent and necessary jurisdiction to take effective action to vindicate its authority and preserve the due and impartial administration of justice".
"Certain complaints were made in the petitions regarding the procedure adopted by the trial judge. We do not consider that in these cases there is any substance in these complaints and indeed the judge adopted the well-recognised procedure which has been adopted for years on occasions such as this. He gave each petitioner ample and repeated opportunity to put forward any explanation or justification for the attitude which each was adopting and both the petitioners were left in no doubt as to the fact that they were being treated as in contempt of Court and would therefore be punished. That in our opinion was adequate to give the petitioners an opportunity to put before the Court any explanation which either of them wished to put forward.
It has always been recognised in Scotland that when such a situation develops at a trial the judge should investigate the matter on the spot and if satisfied that a contempt has been committed he may award at once such punishment as he thinks fit. He is not, of course, bound to dispose of the matter right away but he is clearly entitled to do so and there is much to be said for his doing it at once. He knows exactly how the matter has arisen and is in the best position to judge how grave or flagrant the contempt is. So much depends on the demeanour and bearing of the person alleged to be in contempt. The presiding judge, before whom it has happened, accordingly is in the best position to determine the matter fairly and accurately. Any other judge or Court can only recapture the atmosphere from a perusal of the cold printed record of what was said and therefore can only be dealing with the matter at second-hand. In our view therefore the attack upon the procedure adopted by the presiding judge fails".
The complaints against the sentences were also rejected. It may be that these general observations will require in an appropriate case to be revisited in light of the incorporation of the Convention into Scots law and the consequential application of Convention jurisprudence. But this, in our view, is not such a case. The observations in Wylie were made in the context of undisputed and flagrant contempts by persons lawfully adduced to give evidence in an on-going criminal jury trial, which testimony was clearly important to the outcome of that trial. There is much to be said for the view that, in the administration of justice, prompt and effective steps should be taken to deal with such a situation.  But the present case is very different. The incidence of contempt of court committed by legal representatives appearing for parties before the courts in this jurisdiction is, happily, rare. Ordinarily at least, it will not be necessary, in the interests of securing justice in the case being tried before the court, for any such issue of contempt to be addressed and resolved with particular urgency. In that regard it is not typical of most forms of contempt. In our view, the general observations on procedure in Wylie (which may, in any event, not have been necessary for the determination of that case) have no direct application to circumstances such as arise in the present case. They do not restrict what this court may properly do in the present case. In any event, in so far as they approve a practice of the trial judge himself investigating and determining issues of contempt arising before him, they cannot affect what is appropriate as further procedure at this stage in this case, where it is plain that consideration afresh of the issue of contempt cannot take place before Lord Hardie.  Because the issues debated before us raise new and difficult questions, the answers to which are of practical importance to the administration of justice, there is a temptation to remit them to a larger court for an authoritative ruling at this stage. But given the wide scope and varied nature of contempt of court under Scots law, a comprehensive solution to all such questions cannot reasonably be anticipated upon such a remit. If the law on contempt of court is to be revisited and possibly modified in the light of the Convention and the pertinent European jurisprudence, it is more appropriate that this should be done in the context of a case which is more typical of the forms of contempt of court with which the courts regularly require to deal.  In our view, the appropriate course to adopt, in the circumstances which have occurred in this case, is now to remit the issue of the petitioner's disputed contempt to a member of the court to resolve, with the benefit of such evidence as can be placed before the court, and to report. The nature of the allegations against the petitioner is clearly set out in Lord Hardie's opinion. There is a transcript of the proceedings, and, prima facie at least, no scope for argument about what was said to Lord Hardie. The issues relate to factors extraneous to the formal proceedings before the court, and to the implications that arise from what may be established about those extraneous factors in characterising the petitioner's conduct. The case will be put out by order to discuss the procedure to be adopted.